Written on behalf of NULaw

Parents Disagree Over Level Of French Education Child Should Receive

Having parents who are actively involved in a child’s education is unquestionably a huge benefit for the child. However, for divorced or separated parents who place great value on education, but have different ideas about the best school for a child to attend, the difference in opinion about what is best for the child can lead to an impasse. In a recent decision from the Ontario Superior Court of Justice, the court dealt with an example of such a situation.

Both parents want child to attend school in French

The parents, who live in the Ottawa area, had their child in 2016 and separated in 2018. The mother is originally from Panama and speaks Spanish, English, and some French. The father grew up in Canada and speaks English and Spanish.

Ottawa, like many places in Canada, has a high proportion of residents who speak both English and French. Both parents wanted the child exposed to French while attending school. However, how immersive a program the child should enter was a matter of contention. The father wanted the child to go to a French Immersion program where French is taught as a second language. The mother, however, wanted the child to attend a French school where the language is taught as a first language.

The parents retained a professional to conduct a parenting assessment, part of which focused on which school the child should attend. Ultimately, the report recommended that the child attend a French school, but noted that it would be acceptable for the parents to decide that she enroll in a French immersion school instead.

Court focuses on the best interest of the child

Like all decisions related to children, the court focused on what is in the best interests of the child. When it comes to school, there are a number of factors a court can consider in making this determination. They include:

  1. The ability of the parents to carry out the educational plan
  2. The ability of the parents to assist the child with homework
  3. The interests of the child a paramount over the interests of the parents
  4. The promotion of the child’s cultural and linguistic heritage within the educational program
  5. The location of the school to where the parents live or may live
  6. Problems associated with the schools

The assessments of the child noted that she was an “independent, happy, energetic, bright, and advanced young girl.” The assessor thought that the child would likely have an easy time adapting to the French language.

In looking at the parents’ backgrounds, the court stated that while the mother speaks proficient French, the father is a unilingual anglophone with some understanding of Spanish. However, he believes it is important for the child to become bilingual in French and English.

The issue here was not whether one school is more or less advantageous than the other. Instead, the court focused on the ability for the parents to assist the child with her school work. While the French school would likely lead to the child having a better grasp of the language, the father would not be able to help her with homework since he doesn’t speak French. In French immersion, there will be more opportunities for the father to engage in the child’s work since not all school work is performed in French. This led to the court’s decision that it would be in the child’s best interests to attend a French immersion school.

Separation, divorce, and other family disputes are generally stressful and emotional. If you are contemplating a separation or divorce, your best short-term plan is to contact an experienced family lawyer immediately to understand your options, and to formulate a strategy for moving forward. Contact the knowledgeable, effective, and compassionate family lawyer at NULaw online or at 416-481-5604 to book a consultation.

Husband Seeks Annulment After Failure To Consummate Marriage

When we usually blog about couples deciding to end their relationship, it is usually in the context of separation or divorce. And while those are by-and-far the most common ways for a marriage to end, they are not alone in the role. Another less-common, and as a result less-discussed way for a marriage to end is through annulment. Unlike a divorce, which officially ends a marriage, an annulment is a determination that the marriage never existed in the first place. There could be a few reasons to annul a marriage. For example, it might be discovered that one of the spouses was already married, and therefore could not marry a second person. Another reason a marriage may be annulled is due to the non-consummation of the relationship, meaning the parties did not engage in sexual intercourse. However, it’s not enough for intercourse not to occur, as is seen in a recent decision from the Court of Queen’s Bench of Alberta.

Once-platonic relationship leads to marriage

The parties met in 2005, with the relationship starting off as a platonic one. By 2013 the relationship had become romantic, and they began cohabitating in November of that year. Both the husband and the wife said they had a healthy sexual relationship at that time.

Their relationship did not remain monogamist, however. At some point after they started living together, they agreed to have sex with other people while maintaining their relationship.

The wife had was injured in a car accident in 2014. It impacted various parts of her life, though the extent to which it limited her ability or desire for sexual activity was undetermined.

The parties became engaged in March 2017 and were married in a civil ceremony in Alberta in January, 2019. At this point they had not had sex since the previous summer. In February 2019 they invited friends to a destination ceremony in Mexico. By September of that year the husband had filed an application for annulment on September 5, 2019.

Annulment due to non-consummation of marriage

The court explained that the mere lack of sexual intercourse alone does not provide grounds for annulment of a marriage. Instead, it can only lead to annulment if there is an incapacity springing from physical or psychological limitations beyond the control of the refusing party.

This requirement was a source of disagreement between the parties. The wife stated that while she was injured in the car accident, the injuries in no way affected her inability to engage in sexual intercourse with the husband.

The husband, meanwhile, stated in an affidavit that the wife was off work due to a “psychological disability.” He also referred to the wife’s “mental illness,” though no other documentation made mention of the term. The wife did meet regularly with a psychologist, and the husband said, “my belief is based on those medical documents and my experience with (the wife) and the interactions with (the wife), that is why I believe we meet the grounds for an annulment.”

Court not satisfied with husband’s explanation

The court found that the husband failed to provide medical evidence that there was a physical or psychological reason why the parties had not consummated their marriage. Instead, the court found that it appears as though they simply lost interest in the sexual aspect of their relationship. This, according to the court, fell far short of establishing any incapacity.
Separations can be uncertain and emotional. Your best plan through this transition is to have an experienced family lawyer on your side to provide guidance and assistance and to protect your legal rights. Contact NULaw online or at 416-481-5604 to book a consultation with our experienced divorce lawyer.

Number of Children Does Not Count As Hardship For Child Support

The responsibility to pay child support might prove difficult for some parents. In some cases, a parent can ask the courts to lower their child support payments if they face undue hardship in making them. But a recent decision from the Ontario Superior Court of Justice shows that proving undue hardship isn’t easy, and that the obligation to pay is not in and of itself enough to prove undue hardship.

Father faces child support for 11 children

The mother and father involved in the issue were together for ten years, but the relationship ended in 2010. During their time together they had four children who currently range between 10 and 19 years of age. The mother brought an application to the court seeking an order for child support retroactive to January 1, 2018. She also asked the court to impute an income higher than what the father reported in his tax returns for 2018 and 2019, stating that he worked for cash from time to time which went unreported. She said his 2019 income should be imputed at $152,748 while his 2020 income should be imputed at $111,542.

Previous court orders imposed child support obligations of $1,705 and later $1,433 per month.

The father asked that the court look at his reported  income from 2020 ($24,000) and 2021 ($48,000), which was much lower than his reported income in 2018 and 2019, and that the court also consider that he has seven other children from three different mothers, including three children with his current wife and that all of his children should receive equal child support payments from him. He asked the court to look at his total income for support purposes, determine what the support should be for 11 children, and then set support accordingly.

Court looks at what father’s income should be set at for child support purposes

The court began its analysis by stating that Section 19(1) of the Child Support Guidelines allow for the imputing of support when the court considers it appropriate to do so, including cases of intentional under-employment. Intentional underemployment can include a parent choosing to work a job which pays less than they are capable of making, or when they choose not to work. The court should look at factors such as age, education, experience, skills, and health when determining how much they are capable of making.

While the father said he did not make any money that was not reported, the court was critical of his lack of forthrightness when asked about his employment. The father had provided paystubs from his employer to the court, but he failed to mention that he was the sole shareholder of the company he worked for. He also said he had given the mother and the children money over the years, but there was no evidence provided to support this.

Ultimately, the court determined the father had not reported all of his income, adding that his claim that the number of children he has makes paying support difficult, stating, “It is hard to understand the decisions that the father has made to have eleven children. No explanation was offered. He is 40 years old. He does not appear to believe that it is his obligation to support his children. He could not answer when he asked who he thought would support all his children.”

The court stated that the father averaged an income of just over $98,000 over the last five years, but still failed to pay child support, despite there being an order to do so. As a result, his 2020 income was imputed at $111,748, his 2019 income was imputed at $152,748, and his 2018 income was imputed at $168,167.

Contact NULaw early in your separation to understand your rights and obtain the best possible child support arrangement for your children. Our firm and its forerunners have been advising clients on child support and other family law matters since 1953. We remain committed to upholding the principles established by our distinguished predecessors: combining big firm results with a small firm relationship, and an overall commitment to always put our clients’ best interests first. Contact us online or at 416-481-5604 to book a consultation.

Parties Cannot Agree On Whether Home Should Be Sold

As COVID-19 continues to take centre stage in the lives of most people around the world, the impacts of the pandemic have been felt across all areas of life, including family law. Not only can COVID-19 make things such as child access more difficult to manage, but the economic impacts over the last year are affecting the ability for many people to work, which in turn trickles down into family law. This is illustrated in a recent decision from the Ontario Superior Court of Justice, in which a father asks the court to order the sale of the matrimonial home as well as an investment property in order to alleviate financial stress caused by COVID-19.

COVID-19 leads to loss of income

The motion was brought by the father who was seeking to force the immediate sale of two properties owned by himself and the mother. The main property is their family home, which the mother lives in with their children. The second property is a condominium in Toronto which they currently rent.

The father is an optometrist with two offices in Ontario. Prior to the COVID-19 pandemic he made about $132,000 per year. However, with the virus having slowed down business, he estimates that his 2020 income will come in somewhere around $66,000.

The father stated that he has been responsible for carrying the costs of the matrimonial home, something he said he was not able to afford when he was working full-time, never mind today. In addition, his reduced income has lead to his inability to pay child and spousal support as set out in an order. With property taxes now in arrears, he is asking the court to order the sale of the properties in order to free up equity they have built in the home and condo.

The mother told the court she felt the father was taking an aggressive approach to the litigation, and that she has acted reasonably in refusing to sell the home. She feels the father has not considered the impact the children would face if their home was sold, and that the market is not currently favourable for a sale. Ultimately, she feels the father is trying to apply pressure to her, and that he has access to savings and investments which he failed to mention. She also said he neglected to pursue avenues available to him to help his business during COVID-19.

Court orders sale of properties

The court noted that the Partition Act allows the courts to order the sale of jointly owned property, including matrimonial homes. The court is required to compel the partition and sale unless the party opposing the action has demonstrated that an order should not be made. This can be done by showing malicious, vexatious, or oppressive conduct on the party of the other party.

In this case, the court found that the carrying costs associated with the parties’ properties is unsustainable at present time, noting that house expenses were barely affordable when the family was together, but have become unaffordable altogether now that the mother is out of work and the father is experiencing a reduction in income.

The court did not find that the mother’s objections to the sale of the home were serious enough to warrant preventing its sale, and as a result ordered the parents to work together to list and sell both the home and the investment property.

Separation, divorce, and other family disputes are generally stressful and emotional. If you are contemplating a separation or divorce, your best short term plan is to contact an experienced family lawyer immediately to understand your options, and to formulate a strategy for moving forward. Contact the knowledgeable, effective, and compassionate family lawyer at NULaw online or at 416-481-5604 to book a consultation.

Employee Seeks Inclusion Of Bonus When Terminated Without Cause

Losing a job unexpectedly is never easy news to deal with. However, when someone loses a job and does not receive the payment in lieu of notice they expected to receive, there can be added financial stress to what is already a difficult time. In a recent decision issued by the Ontario Superior Court of Justice, the court looked at whether an employee terminated without cause received enough payment in lieu of notice, and whether his bonus should have been included in that pay.

Terminated from job after eight years

The employee was a Senior Vice-President for the employer, which operated a shipping company, from May 2014 until February 2018. His termination came as the result of a corporate restructuring. He had signed an employment contract prior to starting the job that stipulated he would only be paid a maximum of one month’s pay in lieu of notice in the event he was terminated without cause.

Upon his termination, the employee challenged the termination clause in the contract because it contracted him out of his rights under the Canada Labour Code, was contrary to his rights under common law, and because his one month’s pay also left out any pro-rated payment of his annual bonus.

The employer took the position that the termination clause was enforceable and that it provided the employee with more than he would have received under the CLC. In the alternative, the employer argued that if the termination clause was not enforceable, the employee was only entitled to four or five months’ pay in lieu of notice at common law.

Is the termination clause enforceable?

The court stated that while there is a common law presumption that reasonable notice must be given, employment contracts can rebut that presumption if they clearly provide some other period of notice. Again, the employer stated that the one month’s pay under the contract was the most the employee could have expected to receive under the CLC. However, the court noted that the Employment Standards Act also has to be considered, and that the employee’s length of employment may have qualified him to more than he received under the contract, and it therefore did not displace the presumption that he is entitled to reasonable notice at common law.

Calculating the appropriate period of notice

The employee asked the court to order that he be paid eight months’ pay in lieu of notice. The employer took the position that the employee was only entitled to five months’ of pay.

In order to determine the appropriate period of notice, the court considered a number of factors, including the employee’s salary ($168,000 USD), the level of responsibility he had, his age, the difficulty he may have in finding a comparable job, and his attempts to mitigate the damages by trying to find a new job.

The court found that the employee held a senior position with the employer and due to his age, he may have a difficult time finding a new job. The court awarded him eight months’ pay.

Is the employee entitled to a bonus during the notice period?

The employment contract stated the employer could offer a bonus at its discretion based on the employee’s performance and the company’s profitability. The employer argued that the bonus was entirely within the discretion of the company, and while the employee was eligible for a bonus, he was not entitled to it.

However, the court noted that the employee had received a substantial bonus for each year of his employment, sometimes worth more than 15% of his salary. The court found the bonus was an integral part of the employee’s compensation and should be prorated and included in the notice period.
The knowledgeable and experienced employment lawyer at NULaw in Toronto assists clients with navigating the risks and obligations in employment relationships, including litigation arising out of termination. Contact us online or at 416-481-5604 to book a consultation today.

Father Asks Court To Disallow Mother’s Move

One of the unfortunate realities of separation or divorce for people with children is that one of the parents may make a decision to move to a different city than the other parent. Sometimes this can be a personal choice, but it’s often the case that factors such as employment or new relationships might spur a move. In a recent decision from the Ontario Superior Court of Justice, the court had to determine whether a mother could move from Brampton to Toronto with the parties’ child, of whom she has primary custody.

Assault charge leads to breakup of family

The parties were married on March 6, 2016. While married, they lived in Brampton. While married, they had one child together, a daughter born on October 13, 2019. The mother had been working in Toronto and commuting from Brampton up until the birth of the child.

The marriage broke down on January 28, 2020, when the father was charged with assaulting the mother. A no-contact order was made in connection with that, and the father was not permitted to return to the matrimonial home. The mother and child continued to live in the home until the parties agreed to sell it. It sold in July 2020 and closed in September.

A hearing was held to establish access time for father, who was granted parenting time with the child on Tuesday evenings and every other weekend.

Mother moves with child, father asks for her to be ordered to move back

Following the sale of the house, the mother informed the father that she intended to move to her parents’ residence in Toronto. The mother made the move prior to receiving approval to do so, but maintained the previously ordered access schedule.

The father asked the court to require the mother and child to re-establish residency in Brampton within 30 days.

Mother explains why she moved

The mother explained her reasons for moving to the court. She told the court she works full time in Toronto, and since she is living with her parents, she is able to avoid sending the child to daycare and the expenses that come with it. Her place of employment is close enough to her parents’ residence that she is able to respond to the child’s needs in short order if required. Additionally., she said that the child will benefit from having a close relationship with her grandparents.

The father said that the mother has “manufactured” a new status quo through fabricated assault charges and a move to Toronto. However, the court found that once the parties sold their home, the mother had to move somewhere, and that her parents’ residence was a reasonable place to move. The court was also not overly concerned with the time the child would have to spend commuting between Brampton and Toronto, adding that the four one-way trips were not too many, and that at the child’s young age, should might sleep through most of the drives.

The court rejected the father’s application, allowing the mother to remain in Toronto with the child.

If you are contemplating a separation, or are already in the process, and there are children involved, your first step should be to consult with a family lawyer who has experience with custody and access matters. NULaw and its predecessors have been helping clients in Toronto since 1953. We provide clear, practical advice so that clients can make informed decisions about their parental rights. Contact us online or at 416-481-5604 to book a consultation.

Failure To Add Former Partner To Benefit Plan Leads To Contempt

There are a number of issues a couple must work through when going through a divorce or separation. Most of the time, people think of the common big issues such as spousal support, child support, child custody, and the division of property. However, sometimes there are issues that don’t necessarily make headlines but are still important to consider. Take for example insurance benefits. A recent decision from the Ontario Superior Court of Justice shows how important it is to follow the court’s direction on how to go about maintaining benefits for a spouse post-separation.

Separation and questions about insurance benefits

The parties were married in May 1993. They separated 12 years later in February 2005 and divorced in February 2018. Following their separation the husband maintained the wife as a beneficiary under his benefits plan, but removed her in 2007. However, the parties entered into a separation agreement in 2008. A provision in the separation agreement stated that the husband must maintain the wife as a beneficiary under his benefits plan. At the time the agreement was drawn up, the parties had not entered into relationships with new partners.

The husband gets a new partner

In 2011 the husband asked the wife if he could remove her as a beneficiary under his plan since she had obtained employment and had a benefits plan available through that job. The wife did not respond to this request, and the husband kept her on as a beneficiary. The husband entered into a common law relationship with a new partner in 2012 and once again asked the wife if she could be removed as a beneficiary. The wife gave her approval on this and was replaced as a beneficiary effective April 1, 2012.

The wife unfortunately lost her job in October 2013 and as a result also lost her benefits. Since she and the husband were not yet divorced, she asked him to place her back on his plan. The husband declined to do so, stating that his insurer said she was not entitled.

The husband provided documentation from his insurer stating their definition as “eligible dependent.” It stated,

“Your spouse by marriage or under any other formal union recognized by law, or a person of the opposite sex or of the same sex who is publicly represented as your spouse for a minimum of 12 consecutive months, is an eligible dependent.  You can only cover one spouse at a time…. to be eligible, your spouse must be legally married to you, or be your partner of the opposite sex or the same sex who is publicly represented as your spouse for at least the last year…”

Wife challenges husband’s position

The wife was not satisfied with this explanation and commenced legal proceedings in 2015. By the time the trial came about, the husband had still not added the wife to his plan, nor did he provide any official documentation explaining that he had been directed not to do so. The court ordered the husband to reinstate the wife or pay her $8,000 if he failed to do so.

Husband fails to follow court orders

By the time this trial had taken place, the husband had still not reinstated the wife as a beneficiary under his plan. He also failed to pay the $8,000 in lieu of doing so. He would go on to provide the court with communications from his insurer that he could not have both his new partner and his wife on the plan, but the communication fell short of stating whether he could remove his new partner and reinstate the wife.

Despite being put on notice about pending litigation concerning the issue, the husband did not seek to collect additional information. As a result, he was found in contempt and ordered to pay the amount originally set out as well as interest.

At NULaw, our experienced family lawyer can guide you through the process of making post-separation and post-divorce amendments. Contact us online or at 416-481-5604 to book a consultation, discuss your options, and ensure that you and your children are protected in changing circumstances.

Husband’s Appeals Rejected Due To Unpaid Support

When a court issues an order related to any matter, it’s incredibly important to follow through on any obligations you may have stemming from such an order. As we see in a recent decision from the Court of Appeal for Ontario, failing to do so might not only come with financial impacts, but it could also impact one’s ability to further pursue legal matters.

Father ignores child support orders

The wife left the matrimonial home in 2015 after being married to the father for 27 years. She had no income at the time she left and was dependent on assistance from family as well as social assistance and pension benefits. The court explained that the husband never willingly or voluntarily paid any spousal support and had ignored the trial judge’s order of $2,653 in monthly spousal support plus retroactive support. Instead, he continued to pay just $1,500 per month.

This behaviour led to the first compliance order related to the missed payments, at which time a judge wrote his breach was “flagrant” and directed him to comply with the support order. At that time, the judge wrote that support payments are not stayed pending appeal, and that the husband was required to keep making payments while the issue worked its way through the courts.

Husband attempts to appeal while ignoring order

The court was critical of the husband’s willing breach of previous court orders. The court wrote he,

“has admittedly, unabashedly, and, in our view, unjustifiably, breached the trial judge’s and this court’s orders. He has always been represented by counsel. He has never expressed confusion about what the court orders mean or what is required of him. Other than very recently when faced with the present motion to quash his appeal, he has never attempted to stay the trial judgment. He has breached court orders with the certain knowledge that (the wife) is disabled, unable to work, and in dire financial straits that are exacerbated by these proceedings and his failure to comply with court orders.”

The court also described evidence that the father was employing deceptive tactics to reduce his income while maintaining his lifestyle, including income splitting with his new spouse. The court said, “He has doggedly and undeniably chosen to thumb his nose at court orders. We condemn his behaviour in the strongest terms.”

The husband’s appeal is quashed

The court described this as a clear and exceptional case where the wife is entitled to her full indemnity costs on her motion to quash the appeal. The husband was ordered to pay her a total of $38,419.90 include of all disbarments and taxes. The court noted it has the discretion to refuse to entertain a further proceeding if the husband continued to ignore court orders.

Contact the experienced family law lawyer at NULaw as soon as possible if you are contemplating a separation, or have already begun the process. We are dedicated to pursuing your interests and getting exceptional results. Let us focus on your rights and negotiate the best possible outcome for you while you focus on rebuilding and moving on. Contact us online or at 416-481-5604 to book a consultation.

Father Must Pay S.7 Expenses, But Not Child Support

Families who have children with special needs may find themselves in situations not commonly experienced by other families, including long-term care costs even once the child becomes an adult. In a recent decision from the Ontario Superior Court of Justice, we look at a situation where an adult child is no longer in the care of her parents, and is not receiving child support, but has expenses that might otherwise require child support payments from her father. The decision offers a good look at when courts might deviate from a “one size fits all” approach to child support guidelines.

Adult child lives in therapeutic home

The parents involved were married in 1991.  They had one child while married. The child was born on December 5, 1993. She struggles with autism, significant developmental delay, Oppositional Defiance Disorder, and Attention Deficit Hyperactivity Disorder.

The parents separated in 2005 and were divorced in 2016. A separation agreement from June 2006 was signed by both parents and stated that the mother was to have full custody of the child, but if one parent was to predecease the child, the other parent would become her guardian of property and would have custody of her.

At the time child support was fixed in the amount of $200 per month. This was reflective of the father’s helping the child before and after school as well as taking care of her on days where there was no school.

The agreement stated that child support obligations would terminate when the child was no longer a “child” as defined by the child support guidelines in the Divorce Act.

Child moves to therapeutic home

In September 2007 the child moved to a therapeutic home in Northern Ontario where she has been cared for. The mother makes weekend trips to see her daughter. The child turned 18 in 2011 and at this time he stopped paying child support.

However, the mother applied for support in accordance with Federal Child Support Guidelines to go towards the child’s section 7 expenses.

The court looked at Section 3(2) of the Federal Child Support Guidelines, which state

 “where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is:

(a)   The amount determined by applying these Guidelines as if the child were under the age of majority; or

(b)   If the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.”

Does the child need financial support?

The court noted that the child currently receives $896 per month under the Ontario Disability Support Program (“ODSP”). Of this amount, $500 goes towards room and board, and $100 is saved for an annual trip to Cuba. The balance of her income goes towards extracurricular activities, personal hygiene products, clothing, medication, and gifts for family members.

While the child has a small monthly income, she meets most of her needs. That said, the mother told the court that she pays $231 per month on average to help with additional expenses related to clothing & footwear, personal hygiene, and payments towards a mattress.

The court noted that those expenses could be categorized as Section 7 expenses, and even though the father no longer pays child support, he should be required to pay his portion of the Section 7 expenses.

Separation, divorce, and other family disputes are generally stressful and emotional. If you are contemplating a separation or divorce, your best short term plan is to contact an experienced family lawyer immediately to understand your options, and to formulate a strategy for moving forward. Contact the knowledgeable, effective, and compassionate family lawyer at NULaw online or at 416-481-5604 to book a consultation.

Parents Can’t Agree Over Whether Home Should Be Sold

Family homes can be one of the most valuable assets a couple owns, and in the event of separation or divorce, it’s likely that the home will be sold or one of the parties will purchase the interest of the other. However, sometimes dividing property such as a home is easier said than done, especially when the parties disagree over whether the home should be sold or not. This was the situation in a decision recently issued by the Ontario Superior Court of Justice.

One parent wants to sell the home, one does not

The parties began living together in July 1996 and separated in June 2019. The mother moved out of the home in March 2020 in order to move to North Bay for work. The couple have three children, two of whom are adults, and one of whom was is 18-years-old and is in his last year of high school. The youngest child lives with the father in the family’s home.

The mother brought the application seeking an order to sell the home. The home is the family’s primary asset and has a small mortgage left on it. The mother brought the motion because she wants to use her share of the equity in the home to purchase a new home in North Bay. The father has refused to sell the house and has instead requested to purchase the mother’s interest in it.

Father fails to provide financial information

Following a February case conference, the parties had agreed to share financial disclosure. The mother sent tax, employment, and banking records to the father, but he failed to do the same. In June 2020 the parties agreed that the home was worth $565,000, and the father said he had obtained approval for a mortgage on the basis that the home has a value of $470,000. While he was asked to provide them, the court was not given evidence of this by the father.

Does the law allow for an order to sell the home?

The court stated that the Partition Act provides someone with an interest in land a prima facie right to an order for the sale of a matrimonial home. The courts are required to compel the partition and sale of the home unless the opposing party can show there has been malicious, vexatious, or oppressive conduct on the part of the moving party. In this case, the father had to show this was the conduct demonstrated by the mother.

There was conduct to prevent the sale of the home. The father’s argument then turned to the difficulty he would have finding a new home in the city they lived in if their home was sold. He also stated that he may be prejudiced by the sale of the home since an equalization of family property had not yet been completed. The court dismissed this because the father was the one holding up that process. The court also found no reason to prevent the sale of the home because it would be troubling for the parties’ 18-year-old son. The court did not think this would be an issue.

As a result, the court ordered the home to be sold.  

If you are contemplating a separation, or have already begun the process, contact NULaw in Toronto as soon as possible. Obtain experienced legal guidance from our family lawyer and ensure that you receive a fair division of your property and assets. Contact us online or at 416-481-5604 to book a consultation with family lawyer Lex Arbesman.