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Posts from the ‘Exclusive Possession’ Category

Does Callousness Amount to “Violence”?

callous-husband

Does Callousness Amount to “Violence”?

Many of you might not be aware that in Ontario, the Family Law Act (the FLA) contains provisions that allow a court to consider whether one spouse has committed violence against another spouse or the children, specifically in the context of deciding whether to allow the victimized spouse to have exclusive possession of the matrimonial home.

For these purposes, “violence” is generally easy to identify from a common-sense perspective, and includes physical or sexual force, threats, stalking, harassing, and emotional abuse. But Ontario courts have sometimes been called upon to define the precise limits of that concept.

For example, in a case called Aston v Matwee, the wife made a bid for an order ousting the husband and granting her exclusive possession of the family home. In this context she argued that being a vulnerable spouse, the husband’s callous conduct towards her qualified as “violence” within the meaning of the test set out in the FLA.

Specifically, she claimed that the divorce was causing her stress, and that the husband’s conduct was impinging on her already-fragile health which caused her stress and anxiety that amounted to an emotional condition.

In entertaining this argument, the court took a close look at how “violence” had been defined by courts in the past. The cases showed that in connection with claims for exclusive possession, the character of the violence to be established must amount to a “psychological assault upon the sensibilities of the other spouse to a degree that renders continued sharing of the matrimonial dwelling impractical.” When perpetrated by one spouse on the other, this would typically involve written and spoken conduct that produces an anxiety state, putting the other spouse in fear and impinging on his or her mental and physical health to the point where “violence has been done to [his or] her emotional equilibrium as if [he or] she had been struck by a physical blow.”

Accordingly, the court in Aston v Matwee conceded that “violence” under the FLA is not restricted to physical conduct or abuse (i.e. it can be achieved words and deeds in some cases), but held that the wife’s evidence fell short of showing that the required statutory threshold had been met in her case. The court also pointed out that the FLA did not allow the wife’s emotional condition to be taken into account as a factor.
The court observed that it in light of the potential outcome if the wife prevailed in her application – which would be to dislodge the husband’s statutory right to possess the matrimonial home – the court had to be certain that the necessary legal burden of proof was met before it could make the order. The wife had not succeeded in persuading the court in this instance.

For the full text of the decision, see:

Aston Matwee, 2015 ONSC 8087 (CanLII),

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 RussellAlexander.com.

Late-Breaking Document, Allegedly Forged Signature, and a Lucrative Looming Offer – How Should Court Resolve Couple’s Property Dispute?

forged

Late-Breaking Document, Allegedly Forged Signature, and a Lucrative Looming Offer – How Should Court Resolve Couple’s Property Dispute?

In a case called Holdstock v. Holdstock, the husband ran a landscaping business located on commercial property, but the wife was listed as the property’s registered owner. When the couple split after 35 years of marriage, the husband prepared the necessary financial statement that confirmed the property was owned by the wife. He also showed the business itself as having “nil” value.

With that property ownership designation in-hand, the wife found a buyer willing to pay her $80,000 above the separation-date market value. She launched proceedings to have herself formally declared as owner, and to have the husband vacate.

What happened next became the crux of the couples’ later dispute: With arguably suspect timing, the husband suddenly “found” a trust agreement, ostensibly signed by the wife, in which she agreed not sell the property, and in which she apparently declared that she was holding it in trust for him. In return, she was supposed to receive $1,500 per month under a lease. The apparent purpose of the agreement was to protect the property in the event the husband went bankrupt; it contained a clause that it was intended to supersede all prior agreements.

This late-breaking agreement threw a monkey-wrench into the legal question of the nature and extent of the parties’ respective rights in the property. Some of these scenarios were in conflict with each other: for example, although the wife admitted that she had received the $1,500 per month until recently (in keeping with what the agreement said), she also asserted that the signature on the agreement was not hers.

The matter came before the courts for resolution. A lower court granted the wife a writ of possession, based on the unsworn evidence of an expert who questioned the validity of the wife’s signature. The husband appealed to the Court of Appeal (where he also attempted to tender fresh evidence that the wife’s signature was genuine).

That Appeal Court confirmed the earlier ruling, but did so using a different analysis.

Although the facts (including the validity of the alleged trust document) were murky, one thing was clear: the wife was the registered owner, a fact that was confirmed by the husband in his financial statement. The mere existence of the trust document, even if it was signed, did not justify jeopardizing the favourable sale of the property at this point to the third-party buyer that the wife had lined up.

Once the sale was completed, the financial effect of the trust document – and the corresponding division of sale proceeds – could be untangled in later proceedings. Indeed, there could be one of many potential outcomes: if the trust agreement was created solely in order to defeat creditors, then the court would take steps to remedy the fraud. On the other hand, if the husband was actually the owner of the property, then the $1,500 he had been paying the wife in rent money might actually belong to him. Finally, if it turned out that she invested money towards the purchase of the property, then she may have a claim to a beneficial interest in the home.

In the end, the Court of Appeal dismissed the husband’s appeal, confirmed the wife’s writ of possession, and allowed the sale to proceed at this point. The parties could each make claims to the proceeds of the sale at a future date.

For the full text of the decision, see

Holdstock v. Holdstock, 2015 ONCA 42

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

Husband Threatens to Burn Down Matrimonial Home; Can Wife Get Him Excluded While He is Away on Holiday?

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Husband Threatens to Burn Down Matrimonial Home; Can Wife Get Him Excluded While He is Away on Holiday?

When the husband and wife married, they moved into a heavily-mortgaged home that had been purchased with funds provided entirely by the wife. They signed a pre-nuptial agreement providing that if they separated, the wife would be repaid those funds from the sale of the home prior to any equalization.

When the parties did split three years later, the wife stayed in the matrimonial home while the husband, who was a self-employed contractor, moved into a 20-foot trailer home equipped with kitchen, bathroom and sleeping quarters. However, the split was very acrimonious.

The wife brought an urgent ex parte motion – i.e. without notice to the husband, who was on holiday out of the country – asking that she be given exclusive possession of the home. She also asked for a restraining order. As the court explained:

The [wife] brings this motion in this way because she is fearful about the [husband’s] reaction to her decision to end their relationship. While I am careful not to make definitive findings of fact given the ex parte nature of this proceeding, I note the [wife’s] affidavit evidence to the effect that the [husband] is a volatile and violent alcoholic. As she tells it, he has been intimidating and verbally abusive toward her for years. In the past year, he has been physically assaultive by pushing her and has even gone so far as to place his hands around her neck as if to threaten to choke her, removing them only when the children pulled him away. As recently as February or March 2014, the [wife] indicates that as the relationship deteriorated, the [husband] threatened to burn the matrimonial home down if he could not live in it. She says he even brought a can of gasoline inside to show that he means business. In sum, the [wife] describes a pattern of behaviour on the part of the [husband] that has been escalating in its abusiveness in the form of real and threatened violence.

The court added:

Indeed, it is partly because of the [husband’s] complete lack of financial stake in the property that the [wife] fears he will come through on his promise to burn the house down.

Since the husband was unaware of the motion and was not in attendance, the court pointed out that “as a simple matter of fundamental justice” it could not draw definitive conclusions after hearing only the wife’s side of the story. But that did not mean it should ignore her evidence altogether. As the court put it:
My objective is to put in place a structure to keep the peace while at the same time respecting the [husband’s] right to meaningfully participate in any proceeding infringing upon his interests. In my view, reducing the risk of violence or allegations of violence in this household is in the best interests of all involved and is a goal that is called for given the evidence and which outweighs the [husband’s] property rights in the short-term.

Even though the husband was not present, the court granted the order for exclusive possession until trial, as well as the restraining order, but ordered the matter be returned to court in 10 days to give the husband a chance to be heard. Although under Ontario family law both spouses had an equal right to possession of the matrimonial home, there are acknowledged exceptions; given the potential for violence and the fact the husband had other accommodation, this case was one of them.

For the full text of the decision, see:

Clark v. Westendorp, 2014 ONSC 3490 (CanLII)

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 our main site.

5 Things That Make the Matrimonial Home Unique – Part 2

5 things

5 Things That Make the Matrimonial Home Unique – Part 2

I have written recently about how in Ontario it’s actually possible to have more than one matrimonial home. That followed on a more general post written some time ago about the matrimonial home’s unique nature under Ontario family law.

It’s never a bad time to revisit the specific elements that make the matrimonial home special, this time with a focus on the court’s right to make Orders in connection with it.

1) Special status. The matrimonial home has special “protected” status under Ontario law. As such, there are certain things that spouses can and cannot do. Most notably, one spouse is not allowed to unilaterally do any of the following, without the other spouse’s consent:

• Lock the other spouse out of the matrimonial home;

• Sell the home;

• Mortgage or re-mortgage the home.

2) Court can make Orders. Depending on the nature and objective of the family litigation, an Ontario court is entitled to make an Orders that can affect your spousal rights to the matrimonial home. The court’s powers in this regard arise under the authority granted to it pursuant to the Ontario Family Law Act, the Family Law Rules, and the Courts of Justice Act.

3) Scope and nature of court Orders. There are a variety of Orders that a family court can make in connection with the matrimonial home, including an Order that only one spouse is entitled to be in possession of (i.e. live in) it, and an Order that one spouse may sell, mortgage or encumber it.

The last type of Order may become necessary in a case where (for various reasons) it is prudent for the home to be sold, mortgaged or otherwise encumbered, or where it makes sense in all the circumstances that one spouse has possession, but where the spouses cannot agree. The court in such cases has the power to make the necessary Order.

4) Mandated considerations. Needless to say, courts don’t take their powers lightly; whenever a court is poised to make an Order that deprives one spouse of his or her rights or interest in the matrimonial home, the court will consider a broad array of well-established factors and considerations. For example, if a court is considering making an Order giving one spouse exclusive possession of the matrimonial home, the court is obliged under the Family Law Act to take into account the following:

• The best interests of the children who may be impacted by the order. Under this heading, the court must consider 1) the possible disruptive effects on the child of a move to other accommodation; and 2) the child’s views and preferences, if they can be reasonably ascertained.

• Any existing court Orders relating to family property, including existing Orders for support;

• The financial position of both spouses;

• Any written agreement between the parties;

• The availability of other suitable and affordable accommodation; and

• Any violence committed by a spouse against the other spouse or children.

5) Other rights not suspended. Finally, the fact that a family court might be entitled to make an Order in connection with the matrimonial home does not mean that other litigation has to cease; a third party (i.e. not either of the spouses) might have rights in connection with a matrimonial home that can be enforced as usual. To give the most common example, there may be a mortgage on the home, which the bank can realize upon if it goes into default.

Do you have questions about the court’s rights to make Orders affecting the matrimonial home? Feel free to contact our office.

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 our main site.

Mortgage Default and the Matrimonial Home

 mat home

Mortgage Default and the Matrimonial Home

As if Family Law wasn’t complicated enough, scenarios involving separation and divorce can get tricky in cases where the matrimonial home is subject to a mortgage that goes into default because the mortgage payments have not been kept up.

Fortunately, Ontario’s Family Law Act makes special provision to deal with at least one of the trickier scenarios. To illustrate:

Let’s assume that only one of the spouses has legal title to the matrimonial home, which is subject to a mortgage. But – as regular readers of my blog will know – one of the provisions of the Act expressly grants both spouses and equal right to possession, irrespective of which of the spouses has legal title. Furthermore, if the couple decides to separate, a court may decide after assessing the situation that the spouse who does not own legal title should nonetheless have exclusive possession of (i.e. the right to live in) the home pending a final determination of the issues between them.

So in our sample scenario, the spouses have separated and the non-titled spouse has possession of the matrimonial home.

Next, let’s suppose the mortgage payments on the home aren’t made, and the mortgage goes into default. The lender wants to exercise forfeiture or power of sale proceedings.

A different provision of the Act states that, where someone like a lender is looming due to a mortgage default, the spouse with the right to possession has the same right of redemption or relief against forfeiture as the other spouse, and is equally entitled to notice about the lender’s intended steps.

In other words, even if the spouse doesn’t have legal title to the matrimonial home, the legislation grants him or her not only the same right to possession as the other spouse, but also the same redemption rights that arise to allow for relief against forfeiture. He or she must comply with the same rules of procedure and legislation as the other spouse, in connection with how those rights are to be exercised.

These provisions strive to strike a fair balance between: 1) the spouse who has legal title; 2) the spouse who doesn’t have title, but has court-ordered possession; and 3) the lender who is poised to exercise its rights triggered by the default on the mortgage.

Do you have questions about the effect of a mortgage default on a matrimonial home? We can help.

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.

 

The Down-Side of Trying to Snitch on Your Ex

snitch

The Down-Side of Trying to Snitch on Your Ex

In a recent case called Akwiwu v. Umeugo, the court began its judgment with the following:

This hearing is the latest in a long series of court hearings in this matter dating back to 2010. Better judges than I have already issued decisions they believed would put an end to this endless litigation. This decision is my attempt.

By prior order, the court had given the husband 90 days to come up with a $152,000 as an equalization payment; however the husband had been unable to come up with the money. Their former matrimonial home was currently up for sale, but the wife claimed that the husband had not acted in good faith: He had taken a long time to list it, and when he did he set it at a price was well above fair market value. She therefore asked for an order enforcing the equalization payment, or in the alternative, asked to have the matrimonial home (worth about $450,000) transferred to her name in satisfaction of her equalization entitlement.

On the flip-side, the husband acknowledged that his finances were in a precarious state, but pointed to the wife as shouldering some responsibility for it. Either in response to its questions or on her own initiative, she had told the Workplace Safety and Insurance Board (WSIB) that the husband’s WSIB claim was fraudulent. The husband’s benefits were suspended pending an investigation. Ultimately, the WSIB determined that the wife’s allegations were unreliable; nonetheless, at the time of the court hearing the husband’s benefits had not yet been reinstated. And given the husband’s lack of income, the bank had turned down the husband’s refinancing request, which would have allowed him to make the equalization payment ordered by the court.

In light of his precarious financial state, which had been caused in part by the wife’s own attempt to snitch on him or cause him to be investigated, the husband asked to have the equalization payment stayed (i.e. temporarily suspended).

The court granted the husband’s stay request, and gave him until a specified date to pay the $152,000, or else prove that he had sold the house and that the equalization payment was forthcoming out of the proceeds. As the court put it: “the slow pace of the delivery of the equalization payment is at least in part the fault of the [wife] herself”

For the full text of the decision, see:

Akwiwu v. Umeugo (2013), 2013 ONSC 7707  http://canlii.ca/t/g2dbn

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.

 

What if No One Will Budge? Determining Custody and Exclusive Possession for Stubborn Exes

 stubborn

What if No One Will Budge? Determining Custody and Exclusive Possession for Stubborn Exes

In a recent case called Tayebi v. Oukachbi the court had to intervene in a case involving separated parents who each wanted custody of their two children. What made the case a little unusual, however, was that each of them refused to leave the matrimonial home and both wanted to oust the other. Moreover they both insisted – with perhaps refreshing candour – that they could not cooperate with each other over temporary custody.

This left the court with the task of simultaneously determining which of them should care for the children, and which of them should remain in the house to do so. The court began the narrative this way:

Dr. Tayebi and Dr. Oukachbi began their married life in Algeria, where they grew up. It is doubtful that they were ever happy in their marriage. They immigrated to Canada some years ago and both are now Canadian citizens. Their children … were both born in Thunder Bay. The parents are intelligent, well-educated people; the father is a professor, the mother a physician. Unfortunately, intelligence and good judgment do not always go hand in hand in family matters.

The bitterness of the parents’ relationship permeates the custody litigation, each parent refusing to physically separate by leaving the home. The father says that separation occurred in June, 2012; the mother says it occurred in September, 2011. Whatever the case, the tensions in the home are intolerable. The court must determine temporary custodial arrangements for the children. The matter cannot be delayed.

After reviewing what it called “voluminous affidavits” filed by both parents, the court performed a broad assessment which established that the children had been cared for by the parents rather equally, with neither of them being the primary caregiver.

However, the court also had to consider the day-to-day interactions of the parents towards each other and towards the children. In particular, the court found that the mother did not have a subservient or inferior role in the marriage as she claimed; it also made negative findings as to her credibility. In fact, the court observed that the mother was very angry toward the father and was too heavily invested in being vindicated. She was also deliberately undermining him in the eyes of the children.

In the end – and while recognizing that both parents appeared to love the children and neither was at fault – the court concluded that the mother’s anger and control issues made her unable to put the children’s best interests first at this point. Custody of the children was therefore awarded to the father, and he was granted exclusive possession of the home as well.

For the full text of the decision, see:

Abdelhamid Tayebi v. Salima Oukachbi, 2013 ONSC 6960 (CanLII)  http://canlii.ca/t/g1s0x

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.

Occupation Rent – The Basics

occ rent 

Occupation Rent – The Basics

In Ontario, “occupation rent” is a Family Law concept that actually had its origins in the agricultural and commercial world. It can theoretically apply to any situation where spouses who are co-tenants or co-owners of a matrimonial home have decided to separate, and one of them has physically moved out.

The concept of occupation rent is simple: The spouse who continues to live in the home post-separation (the “occupying spouse”) is responsible for paying fair-market-value rent to the other spouse (the “non-occupying spouse”), for the time period that spans from the separation date until the parties sell the property and divide and equalize their family property as part of the divorce process.

For the spouse who remains in the home, the obligation to pay occupation rent is usually imposed by a court pursuant to the Family Law Act, which authorizes it in the right circumstances, provided he or she has been awarded exclusive possession. (Technically, however, the requirement to pay occupation rent can also arise under the common law, which does not have the exclusive-possession order as a pre-requisite).

Occupation rent is not mandatory in every case; rather, courts have the discretion to order it where the circumstances dictate. There are a number of considerations that a court must take into account, namely:

• the conduct of the non-occupying spouse (including his or her failure to pay support);

• the conduct of the occupying spouse (including his or her failure to pay support);

• delay in making the claim for occupation rent;

• the extent to which the non-occupying spouse has been prevented from having access to his or her equity in the home;

• whether the non-occupying spouse moved for the sale of the home and, if not, why not;

• whether the occupying spouse paid the mortgage and other carrying charges of the home;

• whether children resided with the occupying spouse and, if so, whether the non-occupying spouse paid, or was able to pay, child support;

• whether the occupying spouse has increased the selling value of the property.

Note that to balance out the occupation rent the occupying spouse has to pay, he or she will get credit for any expenses that had to paid, such as mortgage payments, utilities and other normal upkeep and household expenses.

Do you have a situation that might call for occupation rent to be paid? It is important to understand the concept, whether you are the one paying the rent or not. 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.

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