Family Law Blog

Can I Keep Using My Ex’s Cottage After Separation?

view from cottage

It may seem unfair for a spouse to insist on using his or her spouse’s family cottage, even after separation.  But, under Ontario Law, doing so can be a legal right.


In Ontario, the rights of married couples in relation to the matrimonial home are governed by Part II of the Family Law Act. To access the rights in Part II, spouses have to be married and the property in question must be a ‘matrimonial home’, which means that one of the spouses has a legal interest in the property and the property was ordinarily occupied by the spouses on the date of separation.  Except where they have made special arrangements (which both spouses will know about), spouses can have more than one matrimonial home.  Frequently, where the entire family has enjoyed the cottage, the cottage is a matrimonial home as well, so all the rules for matrimonial homes apply to it as well.  You can watch the video below that explains in more detail what a matrimonial home is and what your rights are in relation to it.



Under s.19(1) of the Family Law Act, each spouse has an equal right to possession of the home. That means that your spouse cannot unilaterally kick you out of the house or the cottage, even if they are the sole owner. This extends to changing locks, removing belongings, etc. It also prohibits straggles like selling the house or increasing the mortgage to force the other married spouse out.  A spouse is prohibited from employing any of these self-help measures; they can only do it by order of the Court. Under s. 24 of the Family Law Act, the Court has the power to deal with the property contained in the home or cottage, such as by making orders for the preservation of the property of the delivery of the property to a person.


Ontario Family Law Podcast

8 - How your heart can get you into financial trouble - Step Children and Matrimonial Homes

14 - Family Court Step by Step - Part 1 - Starting and Responding to Family Court Proceedings

15 - Family Court Step by Step - Part 2 - From First Appearance to the last appearance before trial

If your spouse wants to evict you or prevent you from having possession of any matrimonial home, they will have to bring a motion for an order for exclusive possession of the matrimonial home under s.24(1) of the Act. If the cottage is a matrimonial home, then these laws apply to it and your ex has to bring a motion to stop you from using the cottage, otherwise you have the same rights as your spouse to use it. The Criteria for making these orders are contained in s.24(3) of the Act. An order for exclusive possession is an extraordinary remedy, and is only granted in very clear cases. Judges do not like to kick a spouse out of their house unless circumstances compel it, such as where there is clear evidence of abuse or where it is in the best interests of the parties’ child(ren) that the court make such an order. Where the matrimonial home is a secondary property (a family can have more than one matrimonial home), such as a cottage, a judge may be less concerned about such an order ‘putting you out on the street’, your spouse would nonetheless have to convince the court that such an order is necessary.  Since judges may be less concerned about kicking a spouse out of a vacation property because that spouse has someone else to live, it is wise to avoid causing unnecessary conflict over using the cottage - especially if the kids are exposed to that conflict.


For your spouse to bring a motion for an order for exclusive possession, your ex will have to start a court proceeding. There are no legal, out-of-court means to force a spouse to give up  possession of the matrimonial home (except for family arbitration where the arbitrator acts like a judge).  You should listen to these podcasts (Part I, II, III) that explain the family court process in Ontario and what to expect when litigating a family law issue. Watch the video below on the family court process. Your spouse may start a proceeding and then bring the motion on notice to you or, if he or she believes that circumstances are urgent, he or she may start a proceeding and bring the motion immediately without notice to you. If your spouse has contacted a family law lawyer, it is best that you do so as well, and sooner than later. A good family law lawyer will be able to explain your rights and obligations to you and how best to protect yourself through the end of your relationship.



If use has illegally changed the locks, you can ask the Court for an order for possession of the cottage so you can use it. In circumstances where one spouse is clearly denying the other spouse the right to possess the house, a judge may order that you have exclusive possession of the cottage, as there is no evidence that you (unlike your spouse) would prevent him or her from possessing the house. You should speak to an experienced family law lawyer right away, as it is important to make these claims as they arise and not wait to go to court. 


To learn about other ways that cottages can be used, and even become owned by a spouse as a result of divorce, check out the video below that explains how Ontario Family Law applies to cottages


Guide to the Basics of Ontario Family Law Best Seller


To learn even more about your rights and obligations regarding the cottage,  get a copy of this best-selling easy-to-understand book on the basics of Ontario Family Law as a paperback, or as a $9.99 e-book for KindleKobo, or iPad/iPhone/Mac.   You can also use the search on the right to find lots more articles about marriage and divorce. This site has hundreds of pages with important family law information to help you protect you rights and to keep you out of trouble.

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Guide to the Basics of Ontario Family Law Available on Kindle


However, your best option to preserve and protect your rights to a cottage, or any of your other rights in separation and divorce, is to discuss the specifics of your particular case with a top family lawyer who can then give you advice specific to your situation.  Contact Certified Specialist in Family Law (and author of the book to the left), John Schuman, by emailing him, calling 416-446-5847, or using the contact form below.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).


Many thousands of people get family law assistance from this website everyday.  If you have found this page useful, please share it on your social network using the Facebook, Twitter, LinkedIn and Pintrest buttons at the bottom of the page.


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Is There a Time Limit for Making Property Claims in Family Court?

Ticking Watch

A person recently came to me with a problem in relation to her father and her step-mother.  Her father and step-mother have been separated for twenty-years.  They negotiated a separation agreement, but never signed it.  However, they did get an uncontested divorce ten years ago.  Her father died a year ago, and did not leave anything to her step-mother.  Now her step mother wants an equalization payment from the marriage.  However, in this situation, the daughter has nothing to worry about. 


In cases where there is a valid separation agreement, one should always look there first to answer any questions arising from the separation. However, as I explain in this podcast and this video, for a separation agreement to be valid, it must be in writing, signed and witnessed. Because the father’s separation agreement was not signed, it is not valid. As such, the property rights arising from his separation are governed by Part I of the Family Law Act. 


Most legal claims in Ontario are subject to limitation periods.  That means there is a fixed period in which a person can sue in relation to the claim, and once that period is over, the claim “expires” and the person loses all rights to make the claim unless it is already in court. Family Law property claims are no exception.  Separated spouses have to make their claims within a time limit, or they lose the right to make the claim forever.


There is a limitation period for making a claim to equalize the spouses net family properties after a marriage. That limitation period is found in section 5 of the Family Law Act. Under s.5(3), a spouse cannot bring a claim for equalization after the earliest of three events:

a)     The two year anniversary of the date of the divorce judgment (if the spouses were divorced);

b)    The six year anniversary of the date of separation;

c)     The six month anniversary of the death of the other spouse.


Ontario Family Law Podcast

9 - Property Division in Ontario After Marriage

29 - Common Law Separation and Property Division

As section 5 makes clear, once the first of these three happen, the spouse is barred from making a claim. In your case, the first of the three events to happen was the passage of six years since the date of separation. As such, your father’s former spouse is barred from making an equalization. In general, the limitation contained in s.5(3)(c) applies when the death of a spouse causes the end of the relationship. Because of the language of s.5(3), your father’s death will not ‘restart the clock’ and give his former spouse a further 6 months to make a claim. Since his spouse is barred from making a claim to his property, he can deal with it as he sees fit, either during his lifetime or through his will. Of course, if he devises or bequeaths any property to his former spouse in the will, she will be entitled to it notwithstanding her inability to bring an equalization claim. 


Even if you are not married, but are living common-law, and you think you have “common-law property claims to make”, which are hard to make in the first place, there are still limitation period that apply. You have two years to make a claim in relation to any form of assets or possession, and ten years to make a claim in relation to real estate or real property.

Guide to the Basics of Ontario Family Law Best Seller


To learn even more about property division, equalization and limitation periods in family law, you may want to get a copy of this best-selling easy-to-understand book on the basics of Ontario Family Law as a paperback, or as a $9.99 e-book for KindleKobo, or iPad/iPhone/Mac.   You can also use the search on the right to find lots more articles about marriage and divorce. This site has hundreds of pages with important family law information to keep you out of trouble.

Guide to the Basics of Ontario Family Law Available on Kindle
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“Limitation Periods” are something that not many people know exist in family law, but they do.  There are also lots of other peculiar laws that can affect your situation that you probably do not know about.  Those laws, and the problems they can cause, are one of the reasons you need to speak with a good, experienced, family lawyer before taking any action and to make sure you are not taking too long to take action. Otherwise, you may make one of several avoidable big family law mistakes that can cost you thousands of dollars (or maybe your kids) A family lawyer can give you advice on family law options that could save your marriage, or protect you if your marriage is beyond saving    Contact Certified Specialist in Family Law (and author of the book to the left), John Schuman, by emailing him, calling 416-446-5847, or using the contact form below.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).


Many thousands of people get family law assistance from this website everyday.  If you have found this page useful, please share it on your social network using the buttons at the bottom of the page.


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Can I Get A Court Order to Stop My Spouse From Spending?

Fistsfulls_of_Money

Financial troubles are an unfortunate reality in many relationships and are a common cause of divorce and separation. Unfortunately, there is little that a court can do to stop runaway spending by a spouse during a relationship and no, a court cannot declare a person to be financially irresponsible. However, if your spouse’s spending has become an issue, there are a number of steps you can take that do not involve going to court.


 Foremost, you should speak to your spouse. Explain to them your issues with their spending habits and try to work it out between you two. Explore ways to budget and track your household finances to help keep spending under control.  If you are unable to figure it out, you and your spouse may benefit from couples’ counselling. There are a number of professionals specially trained to facilitate discussion between spouses regarding finances and other stressful topics.


Ontario Family Law Podcast

8 - How your heart can get you into financial trouble - Step Children and Matrimonial Homes

9 - Property Division in Ontario After Marriage

As well, there are ‘self-help’ steps that you can take to mitigate the impact of your spouse’s financial irresponsibility.  The most important, and effective of these is to get a marriage contract that divides your property and your debts so that you are no longer responsible for your financial situation and, if your marriage does not survive, you will not be stuck sharing your spouse’s financial problems in the property equalization process.  You do not need to sign a marriage contract before the wedding.  Spouses can sign marriage contracts at any point during their marriage.  These marriage contracts have saved a lot of marriages. If you share a joint bank account, you can open your own account and use it as a conduit for your income, only depositing enough in the joint account to cover your portion of the shared expenses.


While there is little that a court can do in the context of a relationship, they have significantly more expansive powers in the context of a separation or divorce. If a court application has been started and there is concern that a spouse will deplete their assets or joint accounts, a court can make an order that a spouse not deplete the asset any further. If you are in the midst of separating, it is important to speak with a family law lawyer immediately to minimize the damage done by a spouse who is depleting assets.

Book - Guide to the Basics of Ontario Family Law


To learn even more about marriage contracts, family court and mediation, you may want to get a copy of this easy-to-understand book on the basics of Ontario Family Law as a paperback, or as a $9.99 e-book for KindleKobo, or iPad/iPhone/Mac.   You can also use the search on the right to find lots more articles about marriage and divorce.

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Guide to the Basics of Ontario Family Law Available on Kindle
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 If you are thinking about separating because of problems with your marriage, then you need to speak with a good, experienced, family lawyer before taking any action - and certainly before separating. Otherwise, you may make one of several avoidable big family law mistakes that can cost you thousands of dollars (or maybe your kids) A family lawyer can give you advice on family law options that could save your marriage, or protect you if your marriage is beyond saving    Contact Certified Specialist in Family Law (and author of the book to the left), John Schuman, by emailing him, calling 416-446-5847, or using the contact form below.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).


Before separating, because of your spouse’s spending problem, or because of any other reason, in addition to talking to a family lawyer, you should watch the video below to prepare for your separation. 



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Can My Spouse Kick Me Out of Our Matrimonial Home?

matrimonial home

The answer to this question depends on whether you are legally married to your spouse or not.  Married spouses have special rights with regard to their “matrimonial homes.”  Common-law spouses do not have matrimonial homes, they only have “family homes” and they have no special rights to their home.


In Ontario, the rights of married couples in relation to the matrimonial home are governed by Part II of the Family Law Act. To access the rights in Part II, spouses have to be married and the property in question must be a ‘matrimonial home’, which means that one of the spouses has a legal interest in the property (that spouse owns it, rents it, or has a right to own it) and the property was ordinarily occupied by the spouses on the date of separation. You can watch the video below that explains in more detail what a matrimonial home is and what your rights are in relation to it.



Under s.19(1) of the Act, each spouse has an equal right to possession of the home. That means that your spouse cannot unilaterally kick you out of the house, even if they are the sole owner. This extends to changing locks, removing belongings, etc. It also prohibits straggles like selling the house or increasing the mortgage to force the other married spouse out.  A spouse is prohibited from employing any of these self-help measures; they can only do it by order of the Court. Under s.24, the Court has the power to deal with the property contained in the home, such as by making orders for the preservation of the property of the delivery of the property to a person.

Ontario Family Law Podcast

8 - How your heart can get you into financial trouble - Step Children and Matrimonial Homes

14 - Family Court Step by Step - Part 1 - Starting and Responding to Family Court Proceedings

15 - Family Court Step by Step - Part 2 - From First Appearance to the last appearance before trial


If your spouse wants to evict you or prevent you from having possession of any matrimonial home, they will have to bring a motion for an order for exclusive possession of the matrimonial home under s.24(1) of the Act. The criteria for making these orders are contained in s.24(3) of the Act. An order for exclusive possession is an extraordinary remedy, and is only granted in very clear cases. Judges do not like to kick a spouse out of their house unless circumstances compel it, such as where there is clear evidence of abuse or where it is in the best interests of the parties’ child(ren) that the court make such an order. Where the matrimonial home is a secondary property (a family can have more than one matrimonial home), such as a cottage, a judge may be less concerned about such an order ‘putting you out on the street’, your spouse would nonetheless have to convince the court that such an order is necessary.

16 - Family Court Step by Step 3 - the Conduct of the Trial


For your husband to bring a motion for an order for exclusive possession, he will have to start a court proceeding. There are no legal, out-of-court  means to force a spouse to give up  possession of the matrimonial home (except for family arbitration where the arbitrator acts like a judge).. You should listen to these podcasts (Part I, II, III) where I explain the family court process in Ontario and what to expect when litigating a family law issue. Watch the video on the family court process below.  He may start a proceeding and then bring the motion on notice to you or, if she believes that circumstances are urgent, she may start a proceeding and bring the motion immediately without notice to you. If your spouse has contacted a family law lawyer, it is best that you do so as well, and sooner than later. A good family law lawyer will be able to explain your rights and obligations to you and how best to protect yourself through the end of your relationship.



As your spouse has illegally changed the locks, you can ask the Court for an order for possession of the house. In circumstances where one spouse is clearly denying the other spouse the right to possess the house, a judge may order that you have exclusive possession of the cottage, as there is no evidence that you (unlike him) would prevent him from possessing the house. You should speak to an experienced family law lawyer right away, as it is important to make these claims as they arise and not wait to go to court. 

Book - Guide to the Basics of Ontario Family Law


If you are in a common-law relationship, read this page for information about your rights with respect to your family home.


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Guide to the Basics of Ontario Family Law Available on Kindle
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To learn even more about your rights and obligations regarding the matrimonial home, you may want to get a copy of this easy-to-understand book on the basics of Ontario Family Law as a paperback, or as a $9.99 e-book for KindleKobo, or iPad/iPhone/Mac.    You can also use the search on the right to find lots more articles about marriage and divorce.

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If you are being threatened with being kicked out of your home, especially if those threats are accompanied by other threats or violence then you need to speak with a good, experienced, family lawyer immediately. A family lawyer will protect your rights and make sure you do not get into a bad situation that will be difficult and expensive to correct.  Contact Certified Specialist in Family Law (and author of the book to the left), John Schuman, by emailing him, calling 416-446-5847, or using the contact form below.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).


Many thousands of people get family law assistance from this website everyday.  If you have found this page useful, please share it on your social network using the buttons at the bottom of the page.


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Can I Get Divorced If My Spouse Doesn’t Agree?

Spouses arguing over getting a divorce


For many spouses, the prospect of a divorce is an unwelcome reality. Some refuse to accept that their relationship is over, while others view it as an affront to their religious beliefs. In such cases, it may be difficult to get that spouse’s consent to a divorce. However, under Canadian law, you do not need your spouse’s consent to get a divorce (although it usually makes it a lot simpler).  There are also very few ways your spouse can block you getting a divorce.

Ontario Family Law Podcast

 

For much of Canada’s history, there was no codified law of divorce. If a spouse wanted to get divorced, they would have to petition Parliament, who could grant a divorce by passing a special piece of legislation. In 1968, Canada introduced the Divorce Act, a uniform scheme for divorce across the country that continues to govern today.

3 - What is a divorce? How do I get one?

14 - Family Court Step    by Step - Part 1 - Starting and Responding to Family Court Proceedings

Under section 8(2) of the Divorce Act, there are three grounds for divorce:

  1. Living separate and apart for at least one year;
  2. Cruelty, and;
  3. Adultery.

 

While any one of these grounds will entitle a spouse to a divorce, living separate and apart is for one year is the most common. Once one of these events has occurred, either spouse may apply for a divorce. If you are eligible for a divorce, there are three types in Canada:

  1. The first, and most uncommon, option is a joint divorce, where one spouse files the Application for divorce with the other spouse.
  2. The second type is an uncontested divorce. This is where one spouse files the Application for divorce, and the other spouse does not respond to it in court within the 30 day time limit. When the time limit expires, the Applicant can ask the court to grant the divorce order on the basis that the other spouse had the opportunity to oppose it and has not. The court is then allowed to assume that the spouse either agrees with the divorce, or at least does not care about it.
  3. The final type of divorce is a contested divorce. This is where one spouse applies for a divorce and the other spouse does not consent to the terms of the divorce, such as property division or spousal support. It can also occur where the spouse denies that the couple is eligible for a divorce.

 

Where a divorce is contested, it will proceed through the family court process like any other case. If the parties agree to the divorce, but disagree about corollary issues such as spousal support or custody of children, a court can ‘sever the divorce’. This means that the divorce can proceed immediately pending the resolution of the corollary issues. Given that it can take many years for some spouses to finalize property and support arrangements, severing the divorce can be practically much more expeditious.


judge refusing a divorce


However, there are only three reasons why a judge cannot grant a divorce alone (leaving support, property and other claims to separate orders that can be made later).  Neither of those three reasons relates to whether both spouses want the divorce.  Those three reasons are:

 

  1. Any children are not being adequately supported financially. If there are children involved, section 11(1) of the Divorce Act mandates that there be adequate provision for them in place before a divorce will be granted.  What that means, in the light of the Child Support Guidelines, is that the support must be either in accordance with the Child Support Guidelines or must be more than under the Guidelines, although the arrangements can be different. No matter the grounds for divorce or the method used to get a divorce, there must be satisfactory child support arrangements in place before a judge will grant the divorce.
  2. The spouse requesting the divorce is not removing religious barriers to remarriage.  All a divorce order means is that the spouses are legally able to re-marry.  But, the law does not mean the spouses can re-marry in their religion.  A judge can deny a divorce to someone who is effectively preventing his or her ex spouse from remarrying by using his or her religion.  Section 21.1 of the Divorce Act requires that a spouse who wants a divorce must file an affidavit saying that spouse has removed any religious barrier to remarriage that are within that spouse’s control.  If the other spouse files an affidavit saying that is not true, that blocks the divorce.  Obviously, there would be trouble for a spouse who files a false affidavit for any purpose.
  3. At least one of the spouses must have lived in the jurisdiction for at least a year to get a divorce in Canada.   People cannot just come to Canada for their divorce.   However, if neither party has lived in the jurisdiction of the Court for at least one year, then the Court probably will not even accept the Divorce Application.

 

Judges can also refuse to grant a divorce if the judge believes there has been “collusion” or “connivance” by the spouses – essentially the spouses are working together to get a divorce improperly. However, these are not things a spouse could raise to block a divorce.

 

If a judge is satisfied that the grounds for divorce exist and adequate provision for any children has been made, they will grant a divorce judgment. Once thirty days has elapsed from the date of judgment, the spouses will be legally divorced.

Guide to the Basics of Ontario Family Law - 4th edition cover
Guide to the Basics of Ontario Family Law Available on Kindle

 While you do not need a family lawyer to apply for a divorce, it is always advisable that you speak with a good, experienced, family lawyer before proceeding. A family lawyer can help you arrange your affairs so that a divorce can be granted more expeditiously and avoid the many pitfalls and obstacles that can slow the process.  Contact Certified Specialist in Family Law (and author of the book to the left), John Schuman, by emailing him, calling 416-446-4036, or using the contact form below.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).


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Paperback available from:

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To learn even more about divorces, and how to get one, including what to do, what not to do, how to protect yourself and your kids, your options and what steps you need to take, get a copy of this easy-to-understand book on the basics of Ontario Family Law as a paperback, or as a $9.99 e-book for KindleKobo, or iPad/iPhone/Mac. That book will guide you throughout the separation and divorce process, giving you the information you need to know and tips to not just say out of trouble but succeed on all the legal issues - in or out of court.  You can also use the search on the right to find lots more articles about marriage and divorce.


Many thousands of people get family law assistance from this website everyday.  If you have found this page useful, please share it on your social network using the buttons at the bottom of the page.


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What Is The Difference Between “Legal Separation” and “Divorce”

Divorce

“Separation” and “ “Divorce” are obviously two very important concepts in Family Law and in the Family Courts.  They are not the same thing. To the contrary, the two terms have very different meanings, each of which is important. For spouses who are facing a breakdown of their relationship, it is important to appreciate the difference and how it can affect your rights and obligations.

What is a Divorce?

A divorce is a declaration made by a court that formally dissolves a marriage. From a legal perspective, all a divorce means is that the spouses are no longer married, which means they can get married again.  That is all being divorced means.  Married spouses who are separated and are not divorced cannot remarry.  Some people who are separated never get divorced because they never intend to remarry.  However, not getting divorced also has other legal significance.  Separated, but not divorced, couples  cannot sell, mortgage or encumber a matrimonial home without their married spouse’s consent.  This does not change if a married spouse cohabits in an a relationship long enough to have a common-law spouse.  It is possible for a person  to have a married spouse and common-law spouse at the same time if that person does not get divorced.  To find out more about the “meaning” of divorce”, listen to this podcast.


Common law spouses do not get divorced because they were married, and therefore have no need for an order saying they are no longer married.  To understand more what it means to be common-law,  watch the video below.



Ontario Family Law Podcast

1 - Separation and First Decisions

3 - What is a divorce? How do I get one?

In Canada, spouses are eligible for a divorce after the occurrence of one of three triggering events: adultery, cruelty, or living separate and apart for more than one year. Once a court is satisfied that one of these events has occurred, a spouse is entitled to a divorce, even if their spouse does not consent. In practical terms, most spouses are divorced after living separate and apart for one year. Adultery and cruelty are very hard to prove and these claims would most likely require a trial for their resolution. Given that it would take the average case more than a year to reach a trial, most spouses divorce on the basis of living separate and apart for a year. Once a court grants a judgment for divorce, the spouses are divorced on the 31st day after the judgment.

14 - Family Court Step by Step - Part 1 - Starting and Responding to Family Court Proceedings

An Application for divorce can be made by either spouse, and does not have to be done with the consent of the other.  Listen to this podcast on how to start a Divorce Application in Ontario. However, before a Canadian Court will grant a divorce, it must satisfy itself that:


  1. reasonable arrangements have been made for any children of the marriage, taking account of the Federal Child Support Guidelines;
  2. the parties have removed any religions barriers to remarriage over which they have control;
  3. at least one of the spouses has lived in the Court’s jurisdiction for at least one year; and
  4. the partners have not engaged in connivance or condonation in relation to the Divorce.


What is a Separation?

Separated couple


Under Ontario’s Family Law Act, a separation occurs where spouses live separate and apart with no reasonable prospect of resuming cohabitation. This is a legal test.  It does not require any form of document or a court order.  What is required is that an objective observer would say that the spouses are no longer living together as spouses, but are living their lives as separated – and they have ended their spousal relationship.  Being separated does not depend on whether spouses are physically separated or not. Spouses can live separate and apart and physically live in the same house, for instance if neither spouse can afford to move out. Likewise, spouses can live in different countries and not be living separate and apart – think of those in military service who are stationed abroad.


Also, living separated and apart does not have to be a mutual decision.  One party can announce the marriage is over, or walk out of the house, or stop behaving like a spouse.  Once it is clear that has happened, the parties are separated, even if the other spouse does not want to separate.


When a Court assesses whether spouses are ‘separate and apart’, it will look at a number of factors – no one factor is determinative. The Court will look at such factors as:

  1. Whether the spouses occupy separate bedrooms;
  2. Whether the spouses continue to have sexual relations;
  3. Whether the spouses hold themselves out to the community as a couple;
  4. The degree and quality of communication between the spouses;
  5. Whether the  spouses eat meals together as a family;
  6. Whether the spouses engage in joint social activities;
  7. Arrangements regarding traditionally shared expenses;


Unlike divorce, both married and non-married spouses can legally separate. Once spouses are separated, they can make claims for spousal support and child support (if there are children). However, only married couples can make a claim for an equalization of net family properties – common-law spouses have to rely on equitable claims to establish a claim to any proprietary rights. When spouses separate, it is recommended that they settle their affairs through a separation agreement or court order. This will allow spouses a degree of certainty and predictability  in planning their affairs on a go-forward basis. It is always recommended that you speak with an excellent family law lawyer to determine what is the best course of action to ensure that your separation or divorce is as smooth as possible.


Once you are separated, it is important to do the right things to protect your self, and your children, and set yourself up properly for your “new life”.   For a list of the first things to do after separating from your spouse, watch the video below and read this page.


  

Book - Guide to the Basics of Ontario Family Law

To learn even more about how to properly deal with the consequences of the breakdown of a relationship, including what to do, what not to do, how to protect yourself and your kids, your options and what steps you need to take, get a copy of this easy-to-understand book on the basics of Ontario Family Law as a paperback, or as a $9.99 e-book for KindleKobo, or iPad/iPhone/Mac. That book will guide you throughout the separation and divorce process, giving you the information you need to know and tips to not just say out of trouble but succeed on all the legal issues - in or out of court.  You can also use the search on the right to find lots more articles about marriage and divorce.

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Guide to the Basics of Ontario Family Law Available on Kindle


After separation, it is always better to keep your emotions in check and act reasonably and strategically, not impassively.  Doing that can keep you far head of your spouse and will allow you to come off the better in your separation  To make sure you do the right things, you really should discuss your particular case with an excellent family law lawyer.   Contact Certified Specialist in Family Law (and author of the book to the left), John Schuman, by emailing him, calling 416-446-5847, or using the contact form below.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).


Many thousands of people get family law assistance from this website everyday.  If you have found this page useful, please share it on your social network using the buttons at the bottom of the page.


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I Agreed to an Unfair Family Court Order Equalizing Property - Can I Change It?

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To understand why it can be more difficult to change an unfair order for property division than to change an order for child support or spousal support, it is important to understand a little about Ontario Law on property division after a marriage. After that explanation, I will explain how to go about changing a court order made on consent (meaning the parties agreed to it) because of a mistake.


Ontario Family Law Podcast

9 - Property Division in Ontario After Marriage

2 - Options for Resolving Matters After Separation

When married spouses divorce or separate, one of the main issues that common arises is property division or, as it is known in Ontario, equalization of net family properties.  When married spouses separate, they are entitled to an equalization of their net family properties under Part I of the Family Law Act. This means that married spouses are entitled to divide the increase in their net worth that arose during the marriage.  To understand how “equalization” works after a marriage, listen to his podcast. However common-law or cohabiting spouses do not have a right to an equalization or division of property on separation.  To understand what they can do to divide or share their property, listen to this podcast about common relationships  and listen to this podcast about common law separation and property division.


This page relates to how you change your divorce order, or other Family Court Order dealing with property. Spouses who arrive at a settlement regarding property can either have the settlement finalized as a court order or a separation agreement. If you plan to have the settlement reduced to a judicial order, you should watch the video below  how family court works. If you plan to have a separation agreement, you should listen to this blog on how to create a valid and enforceable separation agreement.   If you need to change a separation agreement, then read this page on getting out of a bad separation agreement




If you aren’t sure as to the best way to resolve your issues after separation, you should listen to this podcast.


Where a party wishes to change a court order or separation agreement, generally they have to demonstrate that a ‘material change in circumstances’ has occurred. If the change sought is in relation to child support, the party seeking the change must demonstrate a material change in relation to the needs, means or circumstances of the child. For spousal support, the change must be in relation to the needs, means or circumstances of the party seeking the variation. In terms of an order or agreement regarding equalization, the ‘material change’ test does not apply.  Equalization is based on what the spouses had on the date of marriage and the date of separation and that does not change over time because it is based on what the spouse owned on two fixed dates in the past.  Since these facts do not change,  the procedure of a motion to change is not appropriate.


If a party wishes to change an order related to equalization, they have to rely on Rule 25 of the Family Law Rules , which allows a court to set aside an order where the order was obtained by fraud or contains a mistake. However, it is extremely hard to prove fraud as you will have to prove that your spouse intended to mislead the court.   If you believe that your ex has committed fraud,  you should speak to an experienced family law lawyer now. These are extremely difficult claims to make and you should only seek advice from a lawyer with experience in this area.


If you and your spouse made a mistake in calculations that you gave to the judge to get your court order to equalize your property, or if you had the value of one or more assets wrong, then you can ask for a correction to the Order under Rule 25.  There may have been a “mistake” if one or both spouses did not provide proper, accurate or adequate financial disclosure. This is a reason why proper financial disclosure is very important in family court.  You may get into a bit of an argument with your ex if one of you thinks there was a mistake and the other does not.  The judge has to be convinced that there was a mistake in order to change the order.


There is another important consideration.  Section 7(3) of the Family Law Act says that a judge cannot make an order with respect to equalization if the parties have been separated for more than six years, divorced for more than two years, or one spouse died more than six months ago, which ever is first.   So, your spouse (or his or her estate) may tell the court that the order cannot be fixed if those time limits have passed.  If the time limit has passed, then you really need to speak to a good family lawyer to see if anything can be done.

Book - Guide to the Basics of Ontario Family Law


To learn even more about equalization and how to change a court order, you may want to get a copy of this easy-to-understand book on the basics of Ontario Family Law as a paperback, or as a $9.99 e-book for KindleKobo, or iPad/iPhone/Mac.  You may also want to listen to this podcast or watch this video. You can also use the search on the right to find lots more articles about marriage and divorce, and family law land family court issues on just above every topic.


Guide to the Basics of Ontario Family Law Available on Kindle
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After separation,  it is always better to do things right the first time.  Fixing thing later can be complex and difficult.   To make sure you do the right things the first or second time, around, you really should discuss your particular case with an excellent family law lawyer.   Contact Certified Specialist in Family Law (and author of the book to the left), John Schuman, by emailing him, calling 416-446-5847, or using the contact form below.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).


Many thousands of people get family law assistance from this website everyday.  If you have found this page useful, please share it on your social network using the buttons at the bottom of the page.


Contact Us:


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