By the very nature of the process, people who are going through a separation or divorce tend to have many things they disagree on. But it’s important to remember that even if the parties don’t get along, communication and cooperation during the separation process is essential for there to be any finality in the process. A recent decision from the Ontario Superior Court of Justice shows that a failure to cooperate can lead to the process being dragged out for longer than necessary.
The parties are a married couple who have three children, only one of whom is considered a child of the marriage for support purposes. The mother is 52-years-old, while the father is 61. They were married in 1990 and separated in June 2017.
Since the date of their separation, the parties have lived separate and apart in the matrimonial home which is jointly owned by them. One of the reasons for this is that the father has refused to cooperate in the separation process, and has not agreed for the home to be sold. He has also not provided any financial disclosure to the mother.
The mother has asked for the father to be noted in default as well as for the court to order the sale of their home. The court found that the father’s lack of participation warranted that they allow her request to be made.
Regarding the sale of the home, the court looked at the parties’ circumstances. The house is their only asset of significant value, though they refinanced it in 2019 to help their daughter come up with a down payment for her own home.
The court found that the mother should be able to sell the home, and granted her the exclusive right to pursue and execute its sale. However, she also wanted to have exclusive possession of the home, which would mean that the father would have to move out. The only issue was that once again, the father had not provided any financial disclosure to the mother or the court, and as such, they had no idea whether or not he would be able to afford his own apartment. Of course, this means that other matters that have to be resolved following the sale of the home must also be put on hold because the court needed additional information in order to determine what needs to happen to the funds one the home is sold.
Because of this, the court held that while the mother could proceed with the sale of the home, the funds from the sale would have to be put into a trust pending the outcome of the divorce. Additionally, issues such as child support could not be determined. This doesn’t mean that the mother or father will not have to pay support, though. It simply means that once support is determined, the party who is responsible for paying support may owe retroactive support.
Separating from your spouse can be stressful and emotionally draining. Having an experienced family lawyer on your side can help you navigate this uncertain time in your life, help you understand your legal rights, and ultimately protect your assets and interests. Proactively plan for your new future: contact NULaw online or at 416-481-5604 to book a consultation.
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