For Better or Worse… What You Need to Know About Family Law Right Now

(Before getting married, cohabiting, or even entering into any kind of relationship.)

I am the principal lawyer of Stephen Durbin and Associates, the number 1 rated large family law firm in Canada*, with offices throughout the Greater Toronto Area.

Herein is a series of 27 articles providing guidance for anyone considering entering into any kind of relationship, whether married, cohabiting, or dating. Some will canvas unusual and sometimes nonsensical rules in family law, often yielding bizarre results. Others will show how, armed with certain knowledge, a person might save themselves from substantial unnecessary grief and the forfeiting or losing (or gaining) of a substantial sum of money. These articles are based on the current law of Ontario. While much of the law is similar across Canada, a family lawyer in the relevant province or territory should be consulted.

The following are brief summaries:

1. How title is held for a home (either tenancy-in-common or joint tenancy), can affect how well a parent can provide for their children following separation and divorce. A simple, inexpensive fix can remedy that risk: severing title. (See full article for more[ 1] .)

2. With certain specific exceptions, married couples share the growth in their assets during the marriage, but common-law couples do not. Consider this: one person makes $10 million over 15 years during the relationship. If this person is married, upon separation they must share the growth in family assets with their partner: $5 million each. If the relationship is common-law, nothing is shared, even if there are children. (See full article for more[ 2] .)

3. If upon separation a parent leaves the matrimonial home without the children and begins to reside elsewhere, the strength of their argument for a court order to have the children live with them more of the time, or even equally, can be substantially diminished. (See full article for more[ 3] .)

4. Living with a partner together with that partner’s biological children from another relationship, could mean the partner who is not the biological parent could become liable to support those children until they are of the age of majority, or even thereafter, until they are able to support themselves, including some payment of post-secondary schooling costs. This is the doctrine of in loco parentis (standing in the place of a parent). (See full article for more[ 4] .)

5. If a person solely purchases and owns a home and subsequently marries, then separates while still residing in that home, the full value of that home is shared between the spouses. If that home is instead sold during the relationship and the couple buys another home, the party who brought that home into the marriage gets to deduct its full value at the date of marriage from the assets to be shared between the parties. This is an oft-ignored matter worth hundreds of thousands of dollars.

6. If a couple, whether common-law or married, agree to what they think is a valid marriage contract, cohabitation agreement, or separation agreement that they put together themselves or downloaded from the internet, it can probably be found invalid by a court. The rectification of this can easily turn into expensive litigation that would have been entirely preventable by addressing this properly, with legal counsel and independent legal advice.

7. Claiming adultery is never a good idea, despite its having occurred and it being legal grounds for divorce. Doing so will likely raise the ire of the court.

8. Even if two people never move in together throughout their relationship, they can still be liable to pay or entitled to receive spousal support upon separation.

9. If parents separate, they may not be able to decide whether their child pays for their own tuition, residence, and other post-secondary expenses, or any part thereof.

10. The recipient of child support can choose whether or not to spend it on the children. At higher income levels, child support payments can be little more than a wealth transfer from one parent to the other.

11. One cannot contract out of certain parts of family law, particularly child support, but also, for example, the right to occupy a matrimonial home following separation, much to the dismay and surprise of many.

12. If a parent has the children 59.9% of the time, and not 60% of the time or more, the difference in child support payable or receivable can be in the many thousands of dollars monthly.

13. It is important to recognise a bad lawyer before retaining them or as soon as possible if they have already been retained. Lawyers are easily able to instigate or perpetuate family law litigation, at unnecessary cost to the client. Sometimes, clients are not told they can settle their matter; some lawyers believe they have to “make some money first” before they resolve the matter, and draw out negotiations or litigation to be profitable, despite that the issues in the separation are not complicated.

14. Decisions on motions and trials are binding, even though they can vary greatly between judges. A person can receive a comprehensive opinion at a case conference from one judge on substantive matters then subsequently at a motion or trial get a different judge offering a completely different opinion.

15. A judge may not have any experience in the particular area of law within which they are deciding, and yet a person will be bound by the judge’s decision, subject to appeal, which is expensive and always risky, as appeal courts generally defer to the trial judge absent a clear error of law or a very serious and consequential error of fact.

16. Emergency motions can have serious and unexpected cost consequences. If a person brings an urgent motion in the Family Court, even if they would win if not brought as an urgent motion, the court can decide it is not urgent, deny the motion, and order costs against the moving party solely on the basis that it is not urgent.

17. Someone can consult with dozens of family law lawyers, thereby creating the inability of their former partner to retain those lawyers as counsel, as it would be considered a conflict of interest. Unless that person is so unlucky as to get the solitary judge who views freedom of choice of counsel as more important than conflict of interest (to the benefit of their former partner), they may successfully limit their former partner’s choice of competent and experienced counsel.

18. Judges will often pre-judge a matter based on a cursory review of the case, without reading the materials thoroughly, even if the materials have been thoughtfully and carefully crafted by counsel. Story of a judge who indicated she “scanned” the material, and then made an enormous order for costs without having heard from counsel on the issues at all. Story of another judge who decided the matter without having even looked at the extensive materials prepared by counsel and did not review the materials carefully after counsel pleaded several times for her to take a break to review same.

19. Be wary of lawyers writing excessive correspondence, causing clients’ costs to mount rapidly and substantially. Story of lawyer who would write 15 to 20 pages a day of useless correspondence and how we stopped him by creating an affidavit exhibiting all his correspondence and serving him, but never filing it with the court, curtailing his ridiculous letter-writing, at the risk of some embarrassment to him in court.

20. Lawyers are hesitant to take on a client who has no ability to fund litigation because the other partner controls all the finances; there is no certainty they will be paid, and already have paying clients requiring their attention. Ontario is the only jurisdiction in Canada that does not permit contingency fees in family law under any circumstances. This leads to palpably unjust results, where one party is unable to fund their own litigation. There is now a solution where there was not before: companies that will fund family law litigation under certain circumstances. This allows some equality in the justice system, particularly for those who have been disenfranchised and controlled.

21. If the length of cohabitation is less than 20 years or the age of the recipient on the date of separation added to the number of years of cohabitation adds up to anything less than 65, even by a couple of months, spousal support remains limited in duration. However, if the sum of those is 65 or more or the cohabitation lasted 20 years or more, spousal support becomes “indefinite”.

22. In a marriage, any gifts from third parties, insurance proceeds, and inheritance are exempt from sharing when assets are equalized, but only if kept separate from jointly owned family property. If not kept separate, but “comingled”, the owner loses half of the value of the asset.

23. Perjury, a regular feature of family law proceedings, is rampant. Rarely is someone’s testimony fully challenged until trial (however, only a small percent of cases go to trial), and so the “he said, she said” of factual conflict by affidavit is problematic. If perjury in family matters were prosecuted by the courts, there would be no room for any other cases. Competent counsel is capable of ensuring, despite opposing party’s dishonesty, that damage is minimized.

24. A court will rarely order a transfer of title from one joint property owner to the other, although it is bound by legislation to order the sale of the property. This is often used as leverage in negotiation by the party not interested in keeping the property, as the burden is on the spouse resisting sale to show why the property should not be sold.

25. In certain cases, legal fees and related costs can be deducted from taxable income when they are incurred in pursuit of child or spousal support. This can result in substantial tax savings. An accountant must be consulted for details, as not all fees relating to support are deductible.

26. Almost never will cases see a courtroom at trial; trials are risky and expensive. Most court proceedings are initiated to compel people to do what they refuse to do voluntarily. Many cases are not determined on the basis of who would win or lose at trial, but rather on who has the stomach and ability to pay significant legal fees and the emotional fortitude to see a matter through to an appropriate resolution. Unfortunately, the tactic of exhausting the other party emotionally and financially is too often used to secure unjust results.

27. Entering into a marriage contract or cohabitation agreement is normally a wise thing to do; however, not everything can be covered and protected by a contract. While general contract law allows adults over the age of majority to enter into binding agreements that provide certainty, agreements in family law are subject to being reopened or invalidated by the courts of law should one party complain.

The above is the current state of Ontario law. The law on this topic varies from province to territory. Be sure to contact a family law practitioner within your jurisdiction to ensure you have all the information you need.

The abiding mantra is always the same: Avoid serious, and sometimes irreversible, missteps in the process of separation and divorce. Retain a good family lawyer early on in the process, advisably prior to entering into any relationship.

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Please be advised that all articles written on this website are for informational purposes only and do not constitute legal advice on any subject matter. The information contained within these articles is subject to change at any time and should not be acted upon without previous consultation with legal counsel.

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*By a significant margin the top-rated large (10 lawyers or more) boutique family law firm or family law department in Canada according to LawyerRatingz.com, by far the leading and largest website for review of lawyers in North America, as of January 13, 2021, following a comprehensive study and report on Canadian family law firms and departments of multi-service law firms with 10 or more family law lawyers.