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Top Three Weird Facts About Ontario Divorce Law

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Top Three Weird Facts About Ontario Divorce Law

When people sometimes complain that the law is unfair, they are usually referring to the fact that what amounts to “justice” will vary greatly from situation to situation.

But it’s equally true that Canadian family law has some strange-seeming verdicts, legal conclusions and principles. Here’s a brief list of just some of them:

1. You can be considered “living together” even though you don’t live under the same roof.

With the vast array of different living arrangements in our modern society, the legal test of what it means to be “living together” for family law purposes is getting increasingly murky. The Ontario Court of Appeal, in a case called Stephen v. Stawecki said:

“The case law recognizes that given the variety of relationships and living arrangements, a mechanical bright line test is simply not possible… We agree with the respondent that the jurisprudence interprets ‘live together in a conjugal relationship’ as a unitary concept, and that specific arrangements made for shelter are probably treated as only one of several factors in assessing whether the parties are cohabiting. The fact that one party continues to maintain a separate residence does not preclude a finding that the parties are living together in a conjugal relationship.”

2. You can get divorced from a marriage that doesn’t legally exist.

In a previous post Can a Court Grant a Divorce For a Marriage That Never Legally Existed? I talked about a unique case called Azam v. Jan, in which the court had determine a way to grant a divorce to a woman in Canada who had been involved in a polygamous marriage in Pakistan. Since such marriages are not legal in Canada, and technically are invalid, the court was faced with a unique circumstance. It found an (arguably convoluted) way to achieve justice in the particular circumstances, by essentially granted a Canadian divorce from the non-existent marriage.

3. You Can Have More than One Spouse.

As I have written before Court awards estranged wife deceased man’s pension  the Court of Appeal in Carrigan v. Carrigan Estate considered the meaning of “spouse” in the context of pre-retirement death benefits, and essentially found that in the narrow circumstances, the deceased pension plan member had two spouses: 1) a common-law spouse (one who was living with but not married to him when he died, but who qualified as a “spouse” under the pension itself) and 2) a spouse to whom he was legally married, but from who he was estranged at the time of death. The court awarded the pension benefits to the estranged wife.

This is just a quick list of legal oddities; look for some more in future Blogs.

For the full text of the decisions, see:

Stephen v. Stawecki, 2006 CanLII 20225 (ON CA)  http://canlii.ca/t/1nlr1

Azam v. Jan, 2012 ABCA 197 http://canlii.ca/t/frt8r

Azam v. Jan, 2013 ABQB 201  http://canlii.ca/t/fxj8b

Carrigan v. Carrigan Estate, 2012 ONCA 736 (CanLII)  http://canlii.ca/t/ftj4k

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.