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We’re Officially Separated – Can I Change the Locks on the House?

lock

We’re Officially Separated – Can I Change the Locks on the House?

When a couple first separates under contentious circumstances, I will often get questions about what each party’s respective rights are in the early stages, i.e. before the long process has started of formally dividing up their assets and dealing with any support and child-related issues. One of the most common questions is whether the spouse who remains in the matrimonial home after separation can change the locks in order to exclude the other spouse.

In Ontario, the short answer is: No.

If the now-separated married couple were living in the matrimonial home, and one of them has moved out, neither the Family Law Act nor other legislation entitles the remaining spouse to change the locks. This is because under that legislation the matrimonial home is afforded special status: both spouses are expressly granted an equal right to possession of it. This right of equal possession subsists even after separation unless or until:

1) there has been a separation agreement reached between the parties; or

2) a court order has been granted to establish that one of the spouses is entitled to what is known as “exclusive possession” of the matrimonial home pending a family trial. (And note that once exclusive possession has been granted to one of the spouses, he or she obtains the sole right to live in the home, regardless of who owns legal title.)

Unless one of these mechanisms is in place to override what is otherwise each spouse’s equal right to stay in the home, neither can formally lock out the other. In fact, both spouses will have a right to actually live in the home until a resolution on possession of the home is reached. For obvious reasons, however, this is usually untenable because most separations occur under very high-conflict, emotional-charged circumstances.

But even if one spouse has moved out, he or she is not entitled to come-and-go at will. Rather, there must be adequate and reasonable notice given of any intention to return, for example to retrieve any personal property that has been left behind. Similarly, if a court order for exclusive possession has been obtained in favour of one spouse, it will usually be a term of that order that the other spouse can periodically re-enter for specific purposes, with notice in advance. In this context the court may also order the locks to be changed, if the circumstances between the parties warrant it.

Finally, it is important to note that the order for “exclusive possession” is merely that; it does not give the remaining spouse the right to sell or dispose of any of the furniture or other belongings until all of the separation and divorce issues, including equalization of net family property, have been fully resolved by a court.

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/family-property-division-and-sharing/

In Family Law, Can Text Messages Amount to “Violence”?

texts

In Family Law, Can Text Messages Amount to “Violence”?

The question for the court in an interesting case called Menchella v. Menchella was whether one spouse’s text messages can amount to “violence” against the other, for the purposes of determining which of them should have exclusive possession of the matrimonial home after they separate.

The father and mother separated after 15 years of marriage. They had one child together, who was 12 years old. However, after they separated the father continued to live in the former matrimonial home (which was solely owned by the mother) while they untangled their financial affairs. The mother also lived there with the child, and had been unsuccessful on an earlier attempt to get an order for exclusive possession and have the father ousted.

She came back to court a second time to try for the same order. This time, she added a new ground: she claimed that the father’s abusive texts to her had amounted to “violence” which – under s. 24(3) of the Family Law Act – was one of the specific factors that a court consider in granting an order for exclusive possession in her favour.

The court began by observing that for the purpose of Family Law Act considerations, violence need not be physical:

Violence through words and deeds is a concept well established in both criminal and civil law. Words may be delivered in many different forms. The facelessness and ubiquitous nature of electronic messaging imposes no variation on the usual analysis.

Violence as constructed within Section 24(3) (f) of the Family Law Act [which allows a court to order exclusive possession of a matrimonial home] does not require direct physical injury.

With this in mind, the court illustrated the nature of some of the text exchanges instigated by the father to the mother in this case:

Almost four hours later, the father sent an extraordinary long text to the mother in which she is very personally attacked, her friends are vilified and her counsel is mocked. The communication is obnoxious and threatening. It is wholly non-responsive to the question of caring for his daughter over the thanksgiving weekend. It was not provoked.

His texts continue on the next day, Saturday September 29th, take a break and then start again October 5th, a full week later. The father states that the mother is to “enjoy her ride…there’s a time for everything…and you have hurt me so much that your time…here God will have His reckoning day with you. Later on in the same communication he states that, “I will NEVER forgive what you have done to Alexia! Know this, I am witness to this…and your day is coming soon…that you will regret everything you did to us.”

The court found that the father’s vitriolic texts clearly met the threshold for violence for the purposes of the Family Law Act section authorizing a grant of exclusive possession. The texts had been sent to the mother over the course of a full week, were threatening and intimidating, and were not proportional to the situation. A reasonable person would have found them to be injurious. Moreover, they were potentially harmful to the child. The court wrote:

It is of critical importance that [the daughter] not be exposed to adult conflict. There has been violence between the parents in the form of text communications from the father to the mother. The relationship dynamic now evidenced in those texts suggests that [the daughter] is at risk. In my view, the text messages clearly preclude any prospective potential that the father can live “quietly and discretely” in the mother’s home.

The mother was therefore awarded exclusive possession.

For the full text of the decision, see:

Menchella v. Menchella, 2012 ONSC 6304  http://canlii.ca/t/ftmth

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.

Selling the Matrimonial Home – What if One Spouse Won’t Co-operate?

A recent decision called Ivancevic-Berisa v. Berisa shows what Ontario courts can do if one spouse refuses to co-operate in selling the matrimonial home post-separation.

When the husband and wife separated in 2010, they signed a Separation Agreement to the effect that the husband could say in the matrimonial home until it was sold, but that it had to be sold within a year, with the selling costs to be split between the parties. Subsequently however the husband – despite numerous requests by the wife – had refused to list the house for sale and demonstrated a “militant resistance” to doing so. More to the point, he told her that notwithstanding the Separation Agreement he did not intend to put the home up for sale, but rather planned to keep it for himself. He also said he would destroy all renovations and upgrades to it that they had made since they had purchased it as their matrimonial home.

Indeed, almost two full years later, the house had still not been sold, and the husband was still living in it, even though he had ample time to find new accommodation. In that time, he had been uncooperative with real estate agents, had refused the wife access to the home in order to get it appraised, had refused to pay for his share of the appraisal costs, and had refused to sign a listing agreement. Essentially, by failing to co-operate and refusing to give his consent, he was unilaterally blocking the ability to sell the home.

As a result, the wife was forced to bring a motion to the court for an order dispensing with the husband’s consent to take the necessary steps to list and sell.
(Incidentally, in answer to this motion the husband, who was self-represented, asserted that despite what had been agreed to in the Separation Agreement, he actually wanted to buy out the wife’s interest in the home. He also made lengthy submissions to the court which included evidence that had not been properly tendered from a procedural standpoint. The court nonetheless indulged the husband in hearing those submissions, but ultimately found them immaterial to the issues on the wife’s motion).

In the end, the court allowed the wife’s motion. For one thing, the terms of the Separation Agreement reached between the parties – by which they agreed to sell the home, not have the husband buy out the wife – clearly governed the matter. Next, the Family Law Act clearly allowed a court to authorize a home to be sold if one spouse is unreasonably withholding consent. Here, the husband had acted unreasonably in refusing to co-operate.

The wife was therefore allowed to proceed with the sale of the home without the husband, and at an appraised price set by her agent. The husband’s consent to the process was dispensed with, including eliminating the need for his to sign the listing agreement, as long as the 3.5-percent total commission that had been negotiated by the wife with the agent remained intact. The court further stipulated that the wife would be entitled to arrange showings of the home through the agent as long as she gave the husband 24 hours’ notice by email.

Finally, the husband would be allowed to stay in the home until closing, on one condition: that he co-operated with what was required of him under the order, namely to preserve the home and its contents, and keep it clean and presentable for showings. The court also warned that if the husband failed to comply with all of the terms of the Order, he could expect that the wife would seek an order for exclusive possession and he would potentially face contempt proceedings “which can have a very serious outcome.”

For the full text of the decision, see:

Ivancevic-Berisa v. Berisa 2012 ONSC 4943

http://canlii.ca/t/fsklf

At Russell Alexander Collaborative 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.

Father’s Affair Uncovered by Daughter; Court Considers Whether to Oust Him From 6,000 Square-Foot Matrimonial Home Pending Trial

Father’s Affair Uncovered by Daughter; Court Considers Whether to Oust Him From 6,000 Square-Foot Matrimonial Home Pending Trial

In this case the mother, aged 50, and father, aged 52, had been together for 15 years, and married for 13 of them.  The father was a successful realtor and the mother never worked during the marriage; she stayed home to be the primary caregiver for the 12-year old daughter they had together.

They separated in 2011 when the daughter, in the course of using the home computer, discovered that the father was involved in an ongoing extra-marital affair with a woman who lived in Sweden.  Over the mother’s protestations – and despite several lengthy trips to Sweden – the father had continued to live in the matrimonial home post-separation, ostensibly as a means to maintain a relationship with the daughter.   About this situation, the court wrote:

The mother wants the father out yesterday. She states that his continued occupation of the home is intolerable.

The interesting twist was that the matrimonial home was a 6,000-square foot, custom-built residence owned solely by the mother.  It has been purchased with funds from her extended family, and had a fair market value of over $3 million.  By virtue of a marriage contract, the home was specifically excluded from the couple’s assets that were subject to division upon separation.  

Under the Family Law Act, however, upon separation both spouses had a right to equal possession of the home; a court could nonetheless order that exclusive possession be given to one of the parties pending trial where (among other factors) the best interests of the daughter dictated it. The mother accordingly applied for exclusive possession, with an order that the father vacate within 15 days.    

The father resisted; he proposed instead to live “quietly and discreetly” within 500 square feet of the 6,000-square foot premises, claiming that he had nowhere else to live and no savings or assets with which to arrange for new living accommodation.

As a first step to resolving the dispute, the court had no difficulty concluding that the daughter and mother should continue to live in the matrimonial home; the next question was whether the father should be ordered excluded from it entirely.

The court considered the test for whether the daughter’s best interests would be served by allowing the father to remain. Of particular relevance was the fact that the existing situation might give rise to conflict and stress in the home that adversely affected her.

On this point, the mother produced evidence that the daughter had suffered an anxiety attack on the same day that the father was leaving for Sweden to spend the entire Christmas period with his new partner.  While noting that “the father’s decision calls his parenting priorities into question,” the incident did not amount to sufficient evidence on which to conclude that her parents’ continued joint cohabitation in the home was adversely affecting the daughter.  Nor was the court provided with independent evidence of the daughter’s views and preferences on this point, one way or the other.  

Therefore – and despite voicing its concerns that the daughter had become caught in-between her parents’ struggle — the court declined to make an order for exclusive possession in favour of the mother.  (Of its own volition the court did, however, order the assistance of the Children’s Lawyer to provide the daughter with counsel).

For the full text of the decision, see:

Menchella v. Menchella, 2012 ONSC 1861  http://canlii.ca/t/fqpzv

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

 

 

Daughters Named as Beneficiaries, But Widow’s Right to Million-Dollar Insurance Policy Proceeds Determined by Ontario Succession Law

Daughters Named as Beneficiaries, But Widow’s Right to Million-Dollar Insurance Policy Proceeds Determined by Ontario Succession Law

In Matthews v. Matthews Estate, the husband and wife – who had two daughters together – separated in 2006.   The separation and divorce was typical, and included the usual requests for relief including a divorce, child and spousal support, child custody, exclusive possession of the matrimonial home, and equalization of Net Family Property.  Over the next few years, the parties managed to settle and resolve most of these matters, with the exception of spousal support and equalization which still remained to be determined.

However, there were a few little twists in the story.  

The first is not unusual:   at the time of separation, the husband had a $1 million life insurance policy, and had named his two daughters and sister as beneficiaries.  The daughters were to share $900,000 of the policy proceeds upon the husband’s death, with his sister taking the remaining $100,000.

The second twist, however, was that the husband died in the summer of 2010, just after the trial on the remaining matrimonial had begun (in May), but before the judge had written up the reasons for judgment (in August).  It is important to note that just before the husband’s death, the court in the process of sorting out the parties’ matrimonial issues had made an order vesting the life insurance policy in the wife, designating her the sole beneficiary, and making her responsible for paying all the premiums, going forward.

The third twist is that the without the $1 million life insurance policy, the husband’s estate did not have enough money to satisfy the wife’s spousal support needs.    In fact, at the time of the husband’s death, the matrimonial home had not yet been sold, the husband’s estate was insolvent, and the question of spousal support entitlement and an equalization payment to the wife were still unresolved.

As a result – and despite the fact that the deceased husband had named the daughters and his sister as beneficiaries – the entitlement to the proceeds of the policy was still an issue; the wife was asking for these proceeds to be used in order to pay the support that she was entitled to, as a dependent widow under the Succession Law Reform Act.  (That legislation provides that where a deceased has not made adequate provision for the support of his or her dependants (whether by testamentary document or otherwise), the court may order that funds from the deceased’s estate be used for the dependant’s proper support).

As the court put it, after reviewing the history of the litigation and interaction between the various parties:

It soon became clear that the real contest between the parties was centred on the one million dollar insurance policy.  

The court reviewed the interplay between the beneficiaries’ rights under the policy and the law of dependant’s relief.  It concluded that the Succession Law Reform Act makes it clear that the proceeds of the husband’s life insurance policy can be treated as part of the deceased husband’s estate, and can be used to pay support to the dependant wife – notwithstanding the fact that the husband may have irrevocably designated the daughter and sisters as beneficiaries under the policy.   In other words, if the assets of the husband’s estate were insufficient to meet the husband’s obligations to support his wife as a dependant, then the court must look to his other assets – including the life insurance policy proceeds – which pass by right of survivorship or pass outside the will.     Moreover, in such cases the family litigation is converted into a claim under the Succession Law Reform Act.

However, the court added a caution for these kinds of cases:   Given that by virtue of the Act the proceeds of the husband’s life insurance policy (which is not normally part of a deceased’s estate) are nonetheless being brought into the estate, this will naturally affect the beneficiary daughters and sister detrimentally.  As such, care must be taken to ensure that the burden of any support order in favour of the wife is first borne by the traditional assets of the deceased’s husband’s estate, before any encroachment is made upon on the insurance proceeds.

(As a side note, the court also observed that Spousal Support Advisory Guidelines were not an appropriate tool for determining the spousal support obligations of the deceased husband.  Rather, there were to be determined pursuant to s. 62 of the Succession Law Reform Act, which sets out those circumstances that are to be considered in determining the amount and duration of spousal support.)

For the full text of the decision, see:

Matthews v. Matthews Estate (2012), 2012 ONSC 933  http://canlii.ca/t/fq4rd

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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