Couple’s “Sorrows are Not for a Court to Heal”; Court Sticks to Sorting Out Legal Issues
A recent Ontario decision called Karajian v. Karajian illustrates the court’s difficult role in untangling the complex and emotionally-charged relationship between separating and divorcing couples. In particular, the case underlines: 1) the difficulties a court can have where for financial or other reasons the spouses consider themselves legally separated but continue to live together; and 2) how the court’s already-difficult task is magnified where one of the parties has not fully accepted the fact that the marriage is over.
The couple got married in Syria in 1993, the culmination of an arranged marriage. They returned to the husband’s home in Canada where they lived together until declaring themselves legally separated at some point around 2009 – although the precise date was in dispute.
This is because the couple, despite intending to be separated, continued to live under the same roof. According to the court, this meant that
… the sensibilities of the parties are still raw: hurt, blame, anger, fear, concealment and the absence of a new pattern of communication. This caused them to brood on evidence about the failures of the other in the marriage rather than provide the tools for an order that will arrange their parental and financial futures.
In short, this living situation had the effect of impeding their divorce process: the court found that it especially prevented them from devising a suitable strategy for independent parenting, or to develop a plan for custody of their child.
The court solved the problem temporarily by taking an unusual step (and one that is usually made much earlier in the family litigation process): It declined to give final judgment on the parenting issues, but rather set a parenting schedule, asked the Office of the Children’s Lawyer to get involved, and had the parents reconvene once they have established new parenting circumstances and have “offered the son the best parenting they are able.”
The court concluded by saying: “Then I will judge the issues of custody and access that are premised in the best interest of the child, not, as the parents currently perceive, as a trophy for winning the case.”
Next, the court tackled the remaining property issues: it determined the spouses’ respective incomes for support calculation purposes, determined issues relating to their marital property, and allocated their respective support rights and obligations. However, the court did so despite the parties’ clear inability to truly appreciate the nature and finality of the process of which they were a part; they seemed instead to view the proceedings as a chance to air their respective grievances. The court wrote:
There was no independent legal advice, nor would there have been, because I find as a fact that the Respondent Husband did not differentiate between his property and any property interest the Applicant Wife might have. These concepts of entitlement infuse the Ontario family law sensibility but to many they are strange and unexpected.
I also take this moment to comment on the long and sorrowful testimony of the Respondent Husband about his effort and financial sacrifices for the family, his trust in the Applicant Wife’s spending from their joint account and his perception that he treated his wife no less than a queen. As another human being I listened with empathy to his sorrowful astonishment that his efforts were not sufficient to keep a happy marriage. I listened too with empathy to the Applicant Wife’s sorrowful regret that in the marriage she felt lonely and denigrated. These sorrows are not for a court to heal. The court can help by giving clarity to the legal issues between them so that each will know their financial rights and obligations and each can know the nature and extent of their parenting rights and obligations.
From time to time during the trial I tried to focus the parties’ attention to the task of providing evidence on these points. It was and is apparent to me that they were unable to disengage from their misconception that this trial would assign blame for the conduct of their spouse during the marriage. I regret that they will certainly be surprised that this judgment will dispassionately calculate what support and property equalization is owed; that each will be forced, by the reality of the income available to split between two households, to go on in much reduced financial circumstances and that they will, upon my judgment, be independent of one another except and only to the extent that my order creates continuing financial obligations. The greatest assistance that this court can offer to these distressed parties is finality.
The court accordingly settled the remaining property issues, and made orders relating to spousal support and equalization. The finally divorce order would be issued only after the court’s parenting concerns had been fully addressed by the parties.
For the full text of the decision, see:
Karajian v. Karajian, 2012 ONSC 4921 http://canlii.ca/t/fskzp
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 http://www.russellalexander.com/practice/ontario-divorce/