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Divorce In Canada Divorce is a difficult process, especially if you have recently moved to Canada and you are unsure about what laws apply to you. Generally speaking, Canadian Divorce law is similar to the divorce law of the countries that form a part of the European Union. Canadian Divorce, however, is vastly different from many other parts of the world, such as Iran, mainland China, Saudi Arabia etc. Faced with divorce, you may prefer to obtain a divorce in Canada due to its features such as: Canadian Divorce law generally favours less financial secure spouse; There are no citizenship requirements to get a Divorce in Canada (however, you have to reside in the province for at least one year); Canadian judicial system is focused on the best interests of the children; Canadian Divorce Orders are recognized in a variety of jurisdictions around the world; This article will address the most common questions regarding separation and reconciliation in Canada. For more specific legal advice, please contact our firm, Bahmadi Law and we will be happy to assist you. What is a date of separation? How does it affect my divorce? Unlike many other jurisdictions, Canadian Divorce law does not require a reason for separation or divorce application. The courts, however, do require a specific date when the spouses separate and there is no reasonable prospect that they will resume cohabitation. The date of separation (also known as valuation date) can be the most important date in your divorce process. It determines many aspects of a contested divorce, for example: It can affect the way you and your spouse have to divide your property; It can affect your eligibility for support; A year must pass after the date of separation for the Ontario Courts to grant you divorce; The separation date marks the starting point for certain deadlines (called limitation periods); It is not uncommon for the spouses in a high conflict divorce process to argue about the date of separation and dedicate days of their trial time to determine this issue. Do I need to move out of our residence to separate from my spouse? The date of separation itself has a number of features which are discussed in various cases in great detail. Sometimes its easy to determine when the couple separates as one moves out of their common residence. It is, however, common that the separated spouses continue to reside together. There’s also no requirement to move out of the family residence. Spouses can be separate and apart under one roof. In reality, living separately and apart under one roof can become tricky. The courts review your post-separation conduct under the microscope to determine its context and the real date of separation. How do I convince the court that I am separated? The courts will generally look at the context of the spouses conduct during the separation and ask the following questions: Did you and your spouse exchange texts/emails regarding separation; Are you sleeping in separate bedrooms; Are you appearing together in social events; Are you taking vacations together; Are you taking common pictures or exchange messages of love and affection; Are you filing your individual taxes as married or separated. However, even if the courts determine that the spouses properly separated, Canadian Divorce law allows the courts to determine if the spouses to reconcile if certain conditions are met. What is reconciliation? How does it affect my divorce? Canadian Divorce law, specifically section 10 of the Divorce Act puts a positive obligation on the Court to consider if the parties reconciled or there is a reasonable possibility of reconciliation. This means that when the court reviews the evidence or even the attitude of the spouses and determines that they have reconciled or reasonably can reconcile, the courts must postpone the divorce proceeding and nominate a suitable person to assist you and your spouse with reconciliation. If this happens during your divorce process, not only will this delay and complicate your divorce process but also you will have to determine another date of separation. How does the date of separation affect my property rights? The separation date is extremely important in the context of division of property. It marks the date that the courts use to determine the value of your, your spouses and your joint property. Even if years pass from the date of separation, the courts will most likely use the date of separation as a reference for division of property. For example, if you had a car valued at $20,000 at the date of separation and sold it years after, the court will still likely to require you to include the value of the car on the date of separation in the division of property calculation. This is done to preserve fairness to spouses on the date when they separate and to avoid one spouse depleting their assets to avoid dividing the property. Looking at another scenario, if your spouse had $50,000 on his personal account on January 1 but cashed that amount on January 15, your spouse is likely to vigorously argue that January 15 was the date of separation to minimize the value of his property on the date of separation. For these reasons the determination of the exact separation date can become a highly contested issue which affects thousands to millions of dollars. How does the date of separation affect my support rights? Separation date also generally affect the duration of the spousal support in case of the married spouses. Generally, the longer the marriage is, the longer the spouse can receive support. In some cases, a spouse can argue that the marriage was extremely short and the parties were separated for many years in order to avoid their spousal support responsibility. For unmarried but cohabiting couples the date of separation is even more important as it also is used to determine the eligibility for spousal support. We will discuss the cohabitation in another article.

Family Law Procedure in the times of COVID-19 As Ontarians brace for the lasting economic and social impact of COVID-19. Legal community is faced with increased uncertainty. The offices are being closed, lawyers temporarily laid off and the court scheduling unclear. This short article aims to answer general questions regarding court operations and provide guidance to the family law only processes that can be brought before Ontario Family Courts in these trying times. How are the courts being managed? In Ontario the courts are allowed to manage their own process. This means that they can create rules and regulations on a local (municipal) level regarding procedural issues. These procedural rules are posted on the Superior Court website under Notices to Profession. The rules can vary greatly, for example some courts allow to book pre-trials online while others require special forms to be filed. Your family lawyer will know the process in each court so the deadlines aren’t missed because of technicality. Are the courts closed? After the severity of COVID-19 was recognized, Chief Justice issued a number of directions and orders. A number of notices to profession were issued as well. On March 15, 2020 the courts issued a notice to profession suspending all of the regular operations. In Family Law context this notice is without end date, meaning that the suspension could continue indefinitely. More specifically, the court adjourned (postponed) all non-urgent matters scheduled to be heard on or after March 17, 2020. This means that all non-urgent family law motions, case conferences, settlement conferences were postponed without a date. At the time of writing this article, court remains open for filing only. What if I have a deadline I am afraid to miss? On March 20, 2020 an Order was issued under the Emergency Management and Civil Protections Act. This order suspends all limitation periods (deadlines) from March 16, 2020 and until this order is cancelled. There are certain global deadlines in Family Law that should be met. For example, there is a strict deadline in Family Law Act which prohibits Applications for Equalization of family property after certain period of time has passed. In practice the courts have wide discretion when it comes to dealing with deadlines, and will likely review them case by case basis. In any event when dealing with deadlines consult with an experienced family lawyer to know your rights and risks. What’s happening in the courts right now? On April 2, 2020 the courts updated the Notice to Profession. The update facilitates court vide-conferencing or “virtual courtroom”. The courts started hearing cases over limited issues: Urgent Family Law Matters; Case Conferences over very limited issues (1-2 issue per case conference); The courts allowed service and filing of documents to be done via email, if at a later time the document must also be filed in person. What is urgent? Will my case fall into this category? The requirement for urgency is key and acts as a separate gateway when the Judges consider family law issues. In essence the judge first decides if your case meets the definition of urgency, if it does not, the court disposes of the matter without hearing substantial issues. Over the course of the past few weeks I have reviewed a myriad of cases where spouses argued that their matter is urgent. In their decisions, judges rely on two recent cases which examine urgency in light of COVID-19. First decision is Ribeiro v. Wright, 2020 ONSC 1829, released March 24, 2020. Justice Pazaratz set out principles to aid in the determination of urgency with respect to parenting issues under COVID-19 emergency. Justice Pazaratz highlighted that the aim of the courts is to maintain important parental relationships in a safe way. Justice Pazarats concluded that in most situations the courts will not intervene if the spouses have an existing parenting order or arrangement unless there’s an urgent situation relating to COVID-19. There are circumstances where the court may choose to intervene: The courts may intervene to postpone parent’s scheduled time with a child, for example if a parent is under personal restrictions such as self-isolation for 14 days, due to travel or exposure to the illness. In some cases, the courts may provide directions on direct contact with a child if there is a personal risk factors through employment or associations The courts may also choose to intervene if lifestyle or parental behavior in the face of COVID-19 may necessitate restrictions on parenting time. Justice Pazaratz highlighted that there would be zero tolerance for a parent who recklessly exposes a child to any COVID-19 risk. Finally, the courts may provide directions if there are risk factors related to the health or other circumstances of a child or other members of a household that may necessitate adjustments. This list is a non-exhaustive outline of the circumstances when the courts will likely decide that the matter is urgent . The Second case is Thomas v Wohleber, 2020 ONSC 1965. In this case Justice Kruz provided guidance on what constitutes urgency at the present time: The concern must be immediate and cannot await resolution at a later date. The concern must be serious in the sense that it significantly affects the health or safety or economic well-being of parties and/or their children. The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than theoretical; It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency. In summary, if your case falls within one of the exceptions outlined by Justice Pazaratz and follows the guidelines set out by Justice Kruz you may be able to bring an urgent family law motion by video or teleconference. Please contact our firm if you wish to consult with an experienced family law lawyer regarding your family law issue.

Divorce in Ontario and Religious Divorce Ontario’s population is multicultural, made up of communities of individuals with multitude of religious beliefs and ceremonies. In many countries around the world religious ceremony or similar process is closely tied to the legality of marriage. The Family Law is one of the areas of law where Canadian Divorce law and spouse’s individual religious belief can closely interact. Therefore, when seeking legal divorce in Ontario, separated spouses often also seek to obtain a religious divorce. Some religions may not recognize your Canadian divorce and prohibit you from participating in religious practices in your community until you obtain a religious divorce. The consequences of not obtaining religious divorce in some countries can be even more devastating. For example, if a woman married in Iran and civilly divorced in Canada went to Iran to obtain a religious divorce or for any other reason, her husband could attend at the passport office to have the wife’s passport revoked. Depending on the circumstances of the case the spouse may even end up prosecuted. Another issue arises when one of the parties attempts to use the religious divorce as a tool in their Canadian divorce. It is not unheard of for one of the spouses to threaten to refuse religious divorce and press other issues, like parenting of the children or division of property. Given the severity of some punishments for failing to obtain a religious divorce, this can become a real issue. At its core, the Ontario Courts do not have the power to grant religious divorce in accordance with traditions and religions. Nevertheless, there are things you can do to compel your spouse to obtain the religious divorce or prevent them from using religious divorce in family law litigation. The rarely used section 21.1 of the Divorce Act (which is reiterated in section 2(4) of the Family Law Act) provides the Ontario Courts with a mechanism to remove religious barriers to re-marriage. Canadian Legislation directs each spouse to file with the Court a sworn document which outlines particulars of the case as well as details of any barriers that were not removed. The court then needs to be satisfied of two things, firstly that the barrier exists and secondly that the removal of the barrier to remarriage is within one spouse’s control. The court is not interested in any explanation why a spouse has the right to remove the barrier but chooses not to. As long as the pre-conditions are satisfied, the Court may dismiss the spouse’s Court Application or strike their Answer. In Family Law this means that if you have a court case going you will be able to proceed on all claims without any further participation or input from your spouse. Of course such decision will not be made by the courts lightly and will usually be made in the clearest of cases. Only a handful of case law was released over the past years where this mechanism was utilized successfully. Over the years the Ontario Judges have developed other techniques to carefully navigate between individual religious belief right and legal divorce. Although the judges are unable to order the religious divorce or order a removal of a barrier to remarriage, they were more then willing to order a spouse to consent to a divorce and provide ratification of the divorce or order a spouse to go through a specific process to apply for the divorce. For example, this line of reasoning was followed in the matter of Hesson v. Shaker, 2020 ONSC 1319. The problem with this approach is that it can be unnecessarily expensive. The spouse who alleges that there are religious barriers to divorce must prove them. In order to do so a spouse may need to retain an expert witness who may need to prepare an expert report and testify during trial. This, of course can become expensive and time consuming. Ultimately the decision to grant or not to grant a religious divorce lies with the religious group or authority outside of the Ontario Court’s jurisdiction. Since the matters involving the religious divorce can be complex, we recommend that you contact our firm to have a consultation with the experienced family lawyer to have your questions answered.

Family Law In Canada-Agreements between the parties This article will address the most common questions regarding drafting and enforcement of domestic contracts in Canada. For more specific legal advice, please contact our firm, Bahmadi Law and we will be happy to assist you. What is a Domestic Contract? Domestic Contracts at their core are agreements between spouses that outline how various marital issues are resolved upon separation and divorce. Domestic Contracts can be separated into three general categories: Cohabitation Agreements; Marriage Contracts; Separation Agreements. Each category has unique features that make it niche depending on your marital situation. How are Marriage and Cohabitation Agreements different? Although the issues that each agreement can deal with are essentially the same, married parties can enter into Marriage Agreements before or after the marriage while a couple cannot enter a Cohabitation Agreement after the marriage. However, in some cases if you decide to marry your Cohabitation Agreement can turn into a Marriage Agreement. Cohabitation Agreements are intended for the parties who are involved in a relationship of some permanence (common law relationship) but have not or are not planning to wed. The rights and responsibilities of the parties that are in a common law relationship can be vastly different from the married couples, especially in regards to the property. In fact, these rights can affect the decision of whether to marry or stay in cohabitation. As this topic is quite technical, please consult with the family lawyer if you need more details. What Issues Can Marriage and Cohabitation Agreements deal with? Marriage and Cohabitation Agreements are very flexible. The issues that these agreements can deal with are: Ownership or Division of Property (this includes cars, residences, bank accounts, etc); Spousal Support (eligibility, payout or total release); The right to direct the education and moral training of their children (but not custody or access). Any other issues that you may have; There are, however, key issues which cannot be resolved in Marriage and Cohabitation Agreements: Child Support; Child Custody and Access; The right of possession of the matrimonial property; Agreement to dispose of or encumber an interest in a matrimonial home unless certain conditions are met. What makes Domestic Contracts enforceable in Canada? I have a Marriage Contract/Cohabitation Agreement/Domestic Contract from another country, can it be enforced in Canada? All Domestic Contracts must have the following features to make them enforceable in Canada. Firstly, the agreement must be made in writing. If your Domestic Contract is made in writing but is written in a language other then English, you may need to hire a certified translator to translate the document. Secondly, the agreement must contain signatures by the parties to the agreement (partners or spouses). If the agreement is signed only by one partner/spouse but not the other or if it’s unsigned, it will not be enforced by the Canadian courts as a Domestic Contract. Thirdly, the Agreement must be properly witnessed. This means that the agreement must contain a name and a signature of at least one (better two) witnesses who saw both parties signing the Agreement. As long as your Domestic Agreement from another jurisdiction has these three features, it can be enforced in Canada. The most common example of this is Meher, which is a part of the Iranian marriage tradition. Since Meher contains the above key features, the Canadian Courts can enforce it under certain conditions. What is a Separation Agreement? Like the Marriage Contract and the Cohabitation Agreement, the Separation Agreement is an agreement between the spouses/common law couples that outlines how the parties wish to deal with every aspect of their marriage after separation. Of course, the Separation Agreement can be only entered after the parties separated. Unlike the Marriage Contract/Cohabitation Agreement, there are no limits on the contents of the Separation Agreement. The parties can resolve any and all issues they have. Separation Agreement shares the same three requirements as all domestic contracts as described in section above. Another key feature of the Separation Agreement is that its terms can be turned into an enforceable Court Order after the Agreement is executed. Do I need help of a lawyer to prepare/sign the Domestic Contract? It is quite often that we are approached by individuals that want to sign a “simple” agreement. It is also quite often that their situation is not as simple as they perceive. As we explained in paragraphs above, Family Law Domestic Contract execution and enforcement can be very technical and nuanced. Certain situations may render your agreement unenforceable. In addition, Family Law matters are often intertwined with variety of other issues, like real estate or wills. A family lawyer can provide you with legal advice that can make a difference between entering an Agreement that can be enforced and having it declared null and void. Lastly, the family law lawyer can prepare and sign a Certificate of Independent Legal Advice for his or her client (each spouse requires their own separate lawyer for this). It is usually in your interest to have your lawyer sign a certificate for you and for your spouse to have a lawyer who would review the agreement and sign their own certificate. Certificate of Independent Legal Advice ensures that each party signed the agreement without any undue influence by the other. If you ever have to enforce the Agreement, the Certificate will also show to the court that each party had a legal professional who represented their interests. In general, the Certificates make the Agreements more difficult to dispute, set aside or declare null and void.

In Ontario, the Family Law Act excludes certain property from the net family property calculation. Net family property is the value of each spouse’s property, after deducting debts and liabilities at the time of separation, and then deducting the value of assets brought into the marriage (other than the matrimonial home). The value of each spouse’s net family property will be calculated and then compared to determine whether an equalization payment needs to be made. Generally, a spouse should receive half of the overall net family property in addition to their excluded property. When are gifts or inheritances excluded? Gifts and inheritances will be excluded from a spouse’s net family property if they were received from a family member after the date of the marriage, and the gift or inheritance was given to the spouse alone, rather than to the family as a whole. In addition, any increase in the value of a gift or inheritance is not divided between spouses. If the gift or inheritance is sold or transferred into another asset, that asset also belongs to the one spouse alone. Similarly, any proceeds of sale of the gift or inheritance are also excluded. Gifts or inheritances received before marriage are excluded from the net family property calculation, but any increase in value will be included in the division of family property. When are gifts or inheritances included? In cases where gifts or inheritance have become intermingled (mixed-up) with other family assets, such as the matrimonial home or family bank accounts, then they will be included in the division of family property. For example, if a spouse purchased property with money received as a gift, that spouse would have to show that the property was bought exclusively with gift money. This could be particularly difficult if the money was withdrawn from the family’s joint bank account. If the spouse cannot show that the property was bought exclusively with gift money, the new property will be included in the family property. Similarly, gifts or inheritances will be included in cases where the spouses had a common intention to share the benefit of the gift or inheritance, such as through the common use of property purchased with the gift or inheritance. Interest or income derived from a gift or inheritance will be included in the family property unless a Will or marriage contract provides that it is to be excluded.

Over the last 20 years, legislation has been introduced across Canada to allow spouses to resolve family law disputes using private arbitration as an alternative to the court process. Arbitration is a voluntary agreement between spouses to appoint a private arbitrator to settle issues related to division of property, spousal support and child support. The arbitrator will then make a final decision that is binding on both parties. One of the advantages of arbitration is that the parties have more control over the process of the arbitration in terms of how the issues are presented, which evidence will be included, and how long the hearing will last. This often means that the legal costs involved are greatly reduced. In 2003, as a means to promote private arbitration in family law matters, Ontario passed the Ontario Arbitration Act, which gave spouses the right to use private arbitration to resolve family disputes. The Act also gave spouses the right to choose the type of law (Canadian or non-Canadian) upon which their issues would be decided. In 2006, amidst concerns that arbitration using non-Canadian laws would violate the gender equality provisions of the Canadian Charter of Rights and Freedoms, the Ontario government reversed its decision by requiring that all private arbitration be in accordance with Ontario law. One of the main concerns that led to this reversal was that a women’s right to consent to private arbitration would be violated in cases where they are compelled by the commandments of the religion to submit to these laws. However, the application of Canadian laws based on the principle of freedom of contract has also raised issues related to fairness and gender equality. In the decision of Hartshorne v. Hartshorne in 2004, a couple signed a marriage agreement on the day of their wedding. Both spouses obtained independent legal advice and the wife’s lawyer advised her that the agreement was “grossly unfair,” but she signed it anyway. The majority of the judges on the Supreme Court upheld the marriage agreement because of the wife’s decision to sign, however 3 of the 9 Judges issued a dissenting opinion stating that her signature should not have been sufficient to alleviate the substantive unfairness of the agreement. More recent court decisions in Ontario and B.C., have upheld Maher agreements in cases where they were fair, and where they did not conflict with Canadian law. This suggests that the values of freedom religion and gender equality are not necessarily incompatible, and that a more flexible approach the choice of law used in private arbitrations could help reduce the costs of resolving family disputes so that all Canadians have access to justice.

Under Canadian family law, every parent has to provide financial support for children who are under their control and still dependent on them for their care. The general rule is that children over the age of 18 and who are working, are independent, and therefore do not need support. Where children are enrolled in full-time studies, the time it takes for them to achieve independence from their parents can be later, in which case, support will continue until about the age of 23 or later, depending on the child’s field of study. Unfortunately, previous judicial decisions do not provide much guidance on when a parent can stop paying child support. Because each case is decided based on a unique set of facts, there is no fixed age at which children lose their right to claim support. However, these are a few of the ways child support can be terminated: An agreement between husband and wife to terminate child support by a certain age (however, the court can always overturn an agreement that is not fair to the child); An Order of the Court that terminates child support; A parent’s financial situation requires that child support be terminated; and The relationship between parent and child has broken down. Spousal Support: In the case of spousal support, the husband and wife are free to agree on whatever amount for spousal support they want, and the court will not intervene. However, where they are not able to agree, the amount and duration of spousal support varies widely. As a general rule, the duration of spousal support will be equal to the number of years of the marriage. The objective of spousal support is to compensate the lower-earning spouse so that they maintain an equivalent standard of living until they are able to rebuild their life. However, when deciding the amount and duration of support, a court will consider a number of factors, including: Whether there are children from the marriage, and who has custody; The incomes of each spouse; The age of each spouse; Whether they still have time to rebuild their lives ( i.e. a break-up between young spouses will normally result in lower spousal support payments, whereas a marriage break-down between older spouses will result in higher support payments)

With greater ease of movement across borders, it is not uncommon for people to own property in different countries at the time of their separation or divorce. This often creates a problem because the law in Canada requires that family property be divided equally, but Canadian courts have no jurisdiction over land situated in a foreign country. The failure to take account of foreign property often results to an unequal division of family property. In order to address this problem, Canadian courts have ordered that the owner of foreign assets must sell the foreign property and that the proceeds of sale be used to honour their obligations for equal division of property in Canada. One of the first cases where the courts made such an order involved a couple who got married in Portugal and then relocated to Ontario. The couple had assets in Canada and assets in Portugal, but the property in Portugal was only in the husband’s name. The court ordered the husband to either sell the property in Portugal, or to pay the wife her share of the property. Another way Canadian courts have addressed the potential for an unfair division of property is by including the value of foreign assets in calculating equalization of family property, and then granting one spouse a greater share of the Canadian assets to take account of their share of the foreign assets to which they are not a named owner. This solution can only work however where there are sufficient assets in Canada to equalize the value of foreign assets. Although Canadian courts have developed some methods to ensure compliance with equalization of family property under Canadian law, there is always the risk that the owner of foreign property will not comply with a court order to sell or pay the other spouse’s equal share, leaving the other spouse with no means to collect. A Canadian court can find a spouse in contempt of court for failing to follow a court order, but contempt orders are not always effective, especially if the spouse is no longer living in Canada.