Family law litigation can be an expensive and stressful, which is one of the reasons NuLaw offers alternative dispute and mediation services. It’s not uncommon for the personal differences between two parties to lead to excessive litigation tactics. In a recent decision from the Ontario Superior Court of Justice, a judge chastises both the parties and lawyers for such behaviour.

Who should live in the matrimonial home?

The motion itself was pretty straight forward. The father had come to the court seeking exclusive possession of the parties’ home. The parties’ three children had been in his de facto care since February 2020, but the father lived in a one-bedroom apartment and did not have the room to properly care for the children.

A domestic dispute led had led to the father being criminally charged following allegations of physical assault. His bail conditions prevented him from being within 500 meters of the mother.

Determining whether the father could move back into the home

The court turned to the Family Law Act, which allows for the courts to grant exclusive possession of the matrimonial home to one party. It listed the considerations it must make in order to do so:

  1. the best interests of the children affected;
  2. any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations;
  3. the financial position of both spouses;
  4. any written agreement between the parties;
  5. the availability of other suitable and affordable accommodation; and
  6. any violence committed by a spouse against the other spouse or the children.

As in many family law cases involving children, the primary consideration taken by the court is the child’s best interests.

The court looked at the living conditions being experienced by the father and children, noting that there was only a single bedroom available to the four people living there. Meanwhile, the mother had other options available to her.

Ultimately the court determined the father could have exclusive possession of the home, but ordered him to provide the mother with $5,000 for the months of May and June and $1,250 on the first of each month starting in July.

“Rhetorical Excess”

The court did not conclude its decision with the issue brought by the motion, though. It took time to discuss what it called “rhetorical excess” in family litigation. Both parties alleged the other of committing acts of physical violence during the trial. The court stated, “Litigants feel that they can leave no pejorative stone of personal attack untilled when it comes to their once loved one. Many lawyers, feeling dutybound to fearlessly advocate for their clients, end up abetting them in raising their discord to Chernobyl levels of conflict.”

The court reinforced the notion that if the cost of litigation becomes too high, then all the arties lose, stating that lawyers should be rational advocates and not “flame-throwing” propagandists.

NULaw regularly helps clients resolve their family law issues through alternative dispute resolution. We can help you reach an amicable resolution with your former spouse fairly, cooperatively, and with less cost than through traditional litigation. Contact us online or at 416-481-5604 to book a consultation and discuss your options.

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