in Collaborative Practice, Divorce, Interviews, Uncategorized

Working with a Family Professional: Sue Cook Tell All

Interview with Sue Cook, Owner of Family Therapy and Life Coaching Group

We all know about lawyers being involved in the divorce process, but what about other professionals? Family professionals are often used in the collaborative practice process and may assist parties through their separation, both inside and outside of Court. Livia Jozsa, lawyer with Galbraith Family Law in Barrie sits down with Sue Cook to ask her about her work as a family professional/family therapist and how she can help both lawyers and clients through the separation process.

Sue also answers some of our questions about how family professionals can be helpful in the separation process and what she does. For those wanting to know more about “collaborative law” and the process of collaborative law, we encourage you to visit the Collaborative Practice Simcoe County website at: You can learn about the different processes for separation here:

Livia: Can you give us a brief snapshot of what you do as a family professional working in collaborative law?

Sue:  A family professional can have up to three roles; the first role would be to help prepare the individual spouses for negotiation. This would include making sure that the clients are at the right emotional stage, that they have the proper communication tools, and that they develop coping mechanisms to provide them with support throughout the process.

The second role is to develop the parenting plan. This entails working with each party individually, but also seeing them together as the parents, and helping them come to an agreement on a plan that works best for their family.

Finally, the third role is the case management; however, this is not always conducted by the family professional, it can be undertaken by another neutral party, such as a financial advisor. Case management involves measuring the pace of the process, setting and meeting target dates and timelines, and identifying any blocks that may arise throughout the process.

Livia: Is there a specific timeline that people usually try to finish a collaborative case within?

Sue: It really varies. I know that clients genuinely want things to be done in a timely, cost-efficient manner that brings them closure at the end of the process. However, it really does vary depending upon how ready they are. If it is a complex case, the timeline could be prolonged. The efficiency of the professional team can also play a factor – if the team is really working together well and on top of the caseload, it can decrease the timeline. Currently, I have one case that I think will be done in about three months and then I have another case that has been going on for a year and a half.

Livia: How do you work with other professionals in collaborative law?

Sue: I think one of the most important things for people to know is that the family professionals, lawyers, and financial advisors actually connect with and learn from each other throughout the process. I think you really need to build trust in the team and with each other. You need to understand the personality types of the team, which is something that the family professionals are trained in. So ultimately, you are not just looking at the clients and the dynamic within the couple, but also, the dynamic within the team. We must consider how we can all bring our strengths and move forward in a way that works efficiently for the clients. The team needs to be orchestrated and managed in a way that flows well to exude a sense of trust and safety to allow us to have difficult conversations amongst ourselves in order to facilitate the growth and efficiency of the team.

Livia: Do you offer parenting courses or counseling?

Sue: There are a couple parenting coach options available:

We offer parent coaching services where we are coaching or counselling one parent. This service is suitable if a parent wants to improve their parenting skills. Usually, what that entails is meeting with the parent, observing the parent with their child, providing them with feedback on their parenting, and offering suggestions of things they might be able to do to help with their parenting.

We also do parenting coaching to help the parent to build rapport and relationships with other professionals that are in their child’s life, such as teachers and doctors. We can also help them learn how to communicate effectively with the other parent.

Livia: Would you go into the parent’s home as well and observe them?

Sue: Yes, in the cases where we have done parenting coaching for the one parent, I’ve gone into the home, or in an outside setting, to observe the parent with their child.

By repeatedly observing the parents in the home setting then meeting with them in session individually, we can speak to whether they are actually teachable. And even if the strategies we are asking them to implement are minimal, because they are a really good parent, it just allows us to speak to whether or not they actualize the change.

Livia: That’s great. Because there are so many parents who genuinely want to be involved in their children’s lives, but may lack the skills or not know how to do so, as a separated parent. Do you coach parents on how to tell their children about separation?

Sue: Yes, and quite honestly, I am so excited when people come in and ask me how to do initiate that conversation because it’s such a good foundation for the children. If the parents come to me and are coached on how to tell their children about their separation, that conversation can help those children to transition and to have a solid relationship with both parents. It can make a huge difference for the children.

Livia: Thank you very much for speaking with us and sharing your thoughts, Sue.

For more information on the collaborative divorce process and how it can benefit you, please book a consultation with Livia. Livia will passionately represent you in your case while helping you develop effective strategies to overcome your divorce or separation.

Livia Jozsa

Livia loves assisting clients with their issues, no matter how complex or tumultuous it may be. Livia advocates for her clients passionately and forcefully as needed, but prefers a collaborative approach wherever possible. She does not believe in argument for the sake of argument, but only as a means to resolving conflict within families. Livia is professionally trained in collaborative law. Livia attended Queen’s Law School in Kingston, Ontario and was called to the bar in 2013. She was awarded the Law Foundation of Ontario’s “Community Commitment Award” for extensive commitment to community service as she was involved in many student organizations and legal clinics where she took leadership roles. Livia has appeared in Superior Court in Barrie, Bracebridge and Peterborough and the surrounding areas.

in Children's rights, Co-parenting, Divorce, Legal, Uncategorized

How to Spot Signs of Parental Alienation in Your Family

Parental Alienation is harmful to children. The negative impact of alienation may include depression, substance abuse, low self-esteem, self-hatred, guilt, poor interpersonal relationships, distorted view of reality, and self-doubt.

Most of my clients don’t realize how harmful it is to the child’s development to try to separate the child from the other parent during your access time. The child should not have to hide the fact that they may wish to speak to their mom during your access time or that having a picture of their mom by their bedside might help them fall asleep. It is not healthy for the child to simply erase the mom during their time at your home. Similarly, mom should not try to erase you from the child’s life. You should be invited to watch the child’s extra-curricular activities. Mom should let the child have a picture of you to look at when they are feeling lonely about not being with you. Mom should let the child speak freely to you on the phone at their own initiative. Mom should share all information with you about the child’s progress in school and about significant events, good or bad.

Key Indicators of Parental Alienation

• Bad-mouthing the other parent.
• Creating irrational fear in the child about the other parent.
• Creating resentment in the child for the other parent.
• Discouraging the child from showing positive feelings towards the other parent.
• Eradicating the other parent from the child’s life.
• Not correcting the child from talking negatively about the other parent, or the other parent’s family or pets.
• Allowing the child to make decisions about contact.
• Dissuading the child from talking about the visits.
• Acting permissive to gain favor.
• Displaying body language that shows disdain for the other parent.
• Downplaying the value of the other parent’s relationship with the child.
• Asking the child to keep secrets from the other parent.
• Using the child as a messenger.
• Not correcting the bad behavior of the child towards the other parent.
• Escalating fear about the other parent.

If alienation has been found, then the court may order therapeutic reunification counseling. A possible consequence of failure to participate in counseling could be custody reversal, placement with a 3rd party or with the CAS. Parental alienation is not easy to prove. Expert evidence of emotional harm to the child will most likely be required.

If you and your children are victims of alienation, call us. We can discuss strategies moving forward and offer you choices. If you must go to court, let us be your advocates. We can help.  Book a consultation today!

Lynn Kirwin has been practicing law for 28 years. She specializes in high conflict family law cases with a focus on resolving them in an expedient and results-oriented manner. She believes in saving the client costs. She offers the option of limited scope retainers. She has coached many clients through the process of family court including assisting them with self-representation at trial. She has a wide breadth of knowledge having published several books on family law as well as other areas of law. She has expertise in child abuse cases having worked as in-house counsel at a Children’s Aid Society and having represented parents in court on child protection cases. She also is a panel member for the Office of the Children’s Lawyer, providing representation for children in court. She volunteers her time as the Chair of a Board for a women’s shelter and as President of the Orillia Law Association. She has two daughters who attend university. She enjoys spending her free time traveling with her husband, road cycling and taking long walks with her two beagles

in Collaborative Practice, Divorce, Divorce Evidence Issues, Financial, Legal, Process Choices

My Ex is Sneaky about Finances – What Should I Do?

I’m surprised at the number of married clients who tell me they either haven’t been involved in the family finances, or they don’t know what their spouse owns.  In many of these cases, their partner was secretive, or dismissive or evasive when faced with questions about the family, the business or their own finances.

Money problems are at the root of many separations I’ve seen.  Even if it wasn’t the primary cause, conflict over money often plays an essential role in arguments and builds the level of distrust, leading a couple to decide to separate.  So, it’s no surprise when money struggles plague the separation process.

Finances and Finding Common Ground

Often, the spouse who’s had control over the finances wants to ‘make a deal’ when it comes time to divide the marital property or decide on monthly support.  Sometimes the bargain presented is calculated to be just enough to entice their partner’s agreement, to invite an emotional decision, while still falling short of an equal division.

If you’re the one on the receiving end of this kind of offer, you may want to see all the account statements and company records, but may also dread the struggle you know you’ll face prying the documents out of your ex’s sweaty clamped fists. Or you can’t be bothered because ‘money isn’t everything.’ Or perhaps you strongly suspect that your ex is willing to commit fraud, hiding the assets or transferring them into someone else’s name without leaving a trail.

It may be that your fears prove to be unfounded. I’ve had clients fearing the financial disclosure process be pleasantly surprised.  My intervention as a family lawyer may be enough to get financial disclosure from your ex.

Three Ways of Reaching Financial Happiness

I find it’s common for people to have a lot of questions about what to do to legally separate after making the decision to part ways.  There are 3 overall steps:  1 – financial disclosure; 2 – negotiations over terms (parenting schedule, custody, support, property division); 3 – separation agreement.  Getting all the financial cards on the table, including both parties’ incomes and all property belonging to either or both people jointly, allows the process to move ahead.

Repercussions of Financial Secrecy

If your ex won’t hand over the financial info, the only way to force him or her to give you the information is to hire a hitman.  Uh, ahem, that’s your inside voice talking…you would start a family court application and get a court order for all the financial documents you need.  Being secretive about the finances can create conflict that harms your kids, blows up your relationship and may cost both of you thousands or tens of thousands or more in legal fees.

Most people are afraid of what will happen to them financially through a separation. Maybe your ex who seems sneaky is fearful of what the future holds, financially. Perhaps you’re both afraid – that’s normal. One of the ways to reach a better outcome for your whole family is to make a decision to work together and be fair to each other in your divorce.

The Collaborative Process and You

For my clients who have kids to take care of and years ahead of them as co-parents, and who are willing to give up financial secrets, I often recommend the collaborative process.  A collaborative financial specialist works with both people to collect all the financial documents, generate support options and mediate the property division options, providing 5 and 10-year forecasts for each spouse.  Both people get advice from a collaborative lawyer before signing off on the final deal. In the words of one of my clients, the collaborative process “helps my kids feel like they still have a family” after divorce.

Whatever you do, take the fear and the mystery out of your financial questions and your separation process.  Talk to a family lawyer, to ensure you understand your rights and your obligations. Written by Toni Nieuwhof Family Law Lawyer at Galbraith Family Law. To book a consultation with Toni, please click here.

Toni Nieuwhof provides legal services, advocacy and leadership through her current practice as a family lawyer and community volunteer in Barrie, Ontario. Her legal practice focuses on helping her clients achieve quality settlement results while keeping the interests of the children at the forefront. Toni is an active member of several associations, including Collaborative Practice Simcoe County and the International Academy of Collaborative Professionals.


in Divorce, Financial, Legal, Process Choices

Learn How to Keep Your Composure with Financial Disclosure

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What is Financial Disclosure?

Are contemplating a separation or divorce? One of the most important procedural steps you can anticipate is the exchange of full and frank financial disclosure. Family law legislation requires both parties to have sworn financial statements including supporting documentation. The forms needed for this process depend on whether the resolution of issues includes both property and support considerations, or just support.

What Forms Do You Need?

Once you have selected the correct Form, the documents to be provided in support of the information contained in the Form are, three years of your most recent income tax returns, three years of your Notices of Assessment and, if applicable, a copy of your most recent pay stub.  Further review with your lawyer will determine if additional documentation required, for example, bank statements showing some debts owing at the date of marriage and the time of separation.

Why Financial Disclosure is Right For You

In addition to complying with the prevailing legislation, a good reason for providing full financial disclosure is the assurance that your separation agreement, based on that declaration. Will be a legally binding contract. One of the two primary reasons that separation agreements are set aside if challenged in a court is incomplete financial disclosure by a party; the other is lack of independent legal advice for an individual signing the agreement. You don’t want questions about the enforceability of you agreement raised later based on incomplete financial disclosure. Keep in mind if you do not enclose the correct information it may not be possible for your lawyer to advise you based on inadequate financial disclosure.

Making The Right Choice

At Galbraith Family Law, all of the lawyers are supported by experienced law clerks to assist clients in assembling and providing the correct and necessary financial information required to meet their financial disclosure requirements, while at the same time, doing so in a cost-effective manner. We understand that you may have questions regarding whether bonuses paid in addition to salary should be included in income reported, or whether corporate income, as opposed to personal income, should be added. Questions relating to what constitutes income in the resolution of family law matters are best discussed with a lawyer, and we’re here to help.

For questions regarding financial disclosure in family law matters, or for any inquiries related to your separation or divorce, please contact us. We’re here to serve you. Continue Reading

in Decision Making About Children, Divorce, Emotional Journey, Uncategorized

Discussing Your Divorce: Avoiding Dangerous Advice



There comes a time in our life when you must make decisions based on what lies ahead in your future. The decision could be to pack up and move to another country for a promotion, go back to school, get married, start a family, even file for divorce or separation. These choices are determined by the people in your life who influence you to go left or right or walk or run. Your network is made up of influential individuals like yourself. Friends and family are there for you when you need advice, reassurance, appraisal, and support. Their words can either bring you joy or discomfort. One word or one sentence can change your mind in a matter of seconds. But what if those words do more harm to our thought process than they should?

    Five Common Phrases People of Divorce Hear

  1. “Just try and stick it out for the sake of the children.”
  2. “ So what? You’re unhappy in your marriage, think of the kids.”
  3. “Think of all the endless court battles and piles of paperwork, the cost, do you want to go through all that?”
  4. “You made a commitment.”
  5. “Till death do you part.”

We have all heard these phrases at one time or another whether when watching movies, reading blogs, talking to friends, or even parents. It’s upsetting to hear that we as a society are still using blanket statements to shame and dehumanize people from deciding what lies in the way of happiness. Now let me be clear, your loved ones should not stay quiet during this time. However, I am saying they need to be respectful of your feelings by listening to what you have to say first before letting their judgments or opinions cloud your mind.

Reality Vs. Fantasy

The bottom line is no one plans for getting a divorce or separation. You don’t spend your childhood dreaming of the fairy tale divorce, planning every detail down to what you may wear to court proceedings and the complete guest list. Life isn’t an episode of Say Yes To The Divorce. It’s not something we seek out or want to do. But sometimes it’s the most realistic option to be safe and happy. I think we can all agree that deciding to file divorce is a big step in anyone’s life. You’re exposing yourself to the emotional, financial and parental hardships that come with a divorce. You are starting over and finding who you are spiritually and emotionally in life.

Misconceptions and the Media

Often, we hear stories in the media about how divorces have adverse effects on children. Although necessary, it brings less attention and awareness to what the parent is experiencing. If you’re going through a separation or divorce, stop and ask yourself “what will happen to me?” It is entirely natural to be selfish. Think of marriage as a long-term investment of your time, love, trust, finances, and emotions. What happens when your investment does not pay off? Do you continue investing knowing now the potential outcome? Or do you move forward and ask for help. The reality is no one should make you feel guilty for seeking expert advice. It’s your life and your decision. If you do decide to file for divorce, know the facts first.

Your Solution

Are you or someone you care about going through a hard time with divorce or separation? We at Galbraith Family Law and our team of divorce lawyers are here to help discuss your case and your options. We have helped countless families during this difficult time get back to what matters most “family.” Please contact us today to request a consultation


in Divorce, Legal

Limited Scope Retainers and Self-Reps

                        Are Limited Scope Retainers Right for Everyone?

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You may feel that you have a strong case. Feeling that you have a good case is different than proving that you have a good one. Remember you need to be realistic. I can provide you with a professional outlook on your case. When you hire me under a limited scope retainer, I can do certain parts of your case while you handle other responsibilities. Whether you’re going through a divorce or separation, I can make the process as quick and painless as possible.

What Are Limited Scope Retainers?

A limited scope retainer means you retain me as your agent on an hourly rate to do a particular task while at the same time you remain self-represented. I am not your lawyer “on the court record” which would be the case if you hired me under a general retainer. My name does not appear on your court documents, and I will advise the court when attending for you on a limited scope retainer, that I am your agent on the matter and that I am there to represent you for that particular court attendance only.

As a self-represented litigant, you maintain control over your case, and you are responsible for all aspects of your case. You will speak directly with opposing counsel, and you will receive correspondence directly from opposing counsel unless you instruct me to receive it as your agent. The limited scope retainer ends when I have completed all task that you retained me to perform. You will have to enter into a new limited scope retainer with me to fill out another job. In other words, it is legal services performed “a la carte.”

Tasks I Perform

  • Providing confidential drafting assistance
  • Making limited appearances in court as part of the limited scope retainer
  • Implementing an effective strategy, legal information and out of court coaching for your court appearances, including at trial.

Questions I Can Help You Answer

  • What you want
  • What is the law
  • What you need to do to prove it
  • How you will prove it

Do not assume that you understand the law or the procedures involved. Just because your friend went through a similar situation does not mean that your case will be dealt with in the same way. The law and the legal process are complicated. Furthermore, the judge and the court staff are not there to hold your hand and help you to prepare your case. Consequently, it is not up to the judge to figure out what you are asking for, how the law applies to your facts and what evidence proves those facts. I can help you to prepare your case in a timely and efficient manner. Most of all, I will save you money and time in the long run.

Written by Lynn Kirwin. Family Law Lawyer at Galbraith Family Law. To book a consultation with Lynn, please click here.

in Holidays

Why Do I Need a Travel Consent Letter?

I often have clients that ask, is it really necessary to get a travel consent letter? The short answer is yes. Unless you want to take the risk of having your beautifully planned trip ruined, then yes. It can be a small bothersome task to have a travel consent prepared and notarized. And, you will likely have to pay a fee to have the consent letter witnessed and notarized, but it’s a small price to pay to the alternative of not being able to go on your trip.

The travel consent letter is a recommendation not just by family lawyers, but by the Government of Canada. It is not just separated spouses that may need a travel consent letter. If a minor child is travelling without their custodial guardians, whether that is their grandparents or their soccer coach across the Canadian border, it will also be necessary to obtain and carry a travel consent letter.

What if you have sole custody of your children? Despite having sole or final decision making rights for your children, it is strongly recommended that the travel consent letter is signed both by parents with custodial rights and by parents with access rights to the children.

Do I have to sign a travel consent letter? No, but you will need to have a good reason for not signing, such as the trip being a real risk to the child. If you do not have such a compelling reason and you refuse to sign the letter, the travelling parent could apply for permission from the family court, which may result in more costs owed by you.

We live in a big complicated world and we cannot control what happens at our borders or at any other international borders. So, please add the travel consent letter on your to-do list before you leave for your vacation with your kids.

I wish you all safe travels!

Written by Karman Lock, Family Law Lawyer at Galbraith Family Law. To book a consultation with Karman, click here.

in Legal

Do you want to sue the CAS and you are self-represented? Consider a limited scope retainer.

You can be self-represented and sue the CAS but I recommend that you hire a Lawyer on a limited scope retainer to assist you with preparing your Statement of Claim. You may also consider hiring a litigation coach on a limited scope retainer to assist you with preparing your argument at court.

The CAS will not negotiate with you and it will resist paying you any sort of money for having wronged you. It will want a court to order that you can’t have your case heard by a judge at trial or in other words it will want to have your claim struck. It will argue that it doesn’t owe you a duty of care and that it only owes the child a duty of care. You may want to sue on behalf of your child but you will need to sue in the name of a litigation guardian for the child. You may feel that you have been personally wronged but the law is not clear as to whether you have a right to be compensated monetarily for having been wronged.

However, the law in respect of finding a CAS negligent and/or acting in bad faith is evolving. It is very important that you have a lawyer prepare your Statement of Claim who can assist you with setting out precisely why you feel wronged and why a court should order that you should be compensated with money. It is true that CAS employees are protected against personal liability for any act done in good faith execution or intended execution of their duties. This immunity can only be displaced if you can show bad faith, malice or intentional wrongdoing on the part of CAS employees. If you can show that the society worker was biased, that he/she deliberately ignored pertinent information, knowingly filed a false and misleading affidavit, refrained from following up with collaterals, or demonstrated malice towards you then you may be successful in suing the CAS and being compensated monetarily. But, the court will and can strike out your claim if it doesn’t think that you have a reasonable prospect of succeeding.

Therefore, it is very important that you consider hiring a lawyer on a limited scope retainer, at the very least, to assist you with properly drafting your documents and assisting you with your argument before proceeding to sue the CAS.

Written by Lynn Kirwin. Family Law lawyer at Galbraith Family Law. To book a consultation with Lynn, please click here.

in Matrimonial Home

What Happens to Our Home When We Get Divorced?


What Happens to Our Home When We Get Divorced?

As Divorce Lawyers, this is one of the most pressing concerns facing our clients. The most significant asset that many families have is the family home.  To most people, the house is more than just a house, it is a family home.  It has special significance to both spouses and can often be a cite of contention within the separation process.

The Ontario Government recognized the special place the matrimonial home plays in many families and has created special rules for how the home is to be treated within the divorce process. This blog post will address some of the main questions people have concerning the matrimonial home including:

  1. What is a matrimonial home
  2. How is the matrimonial home treated in property division
  3. What does possession of the matrimonial home mean
  4. What happens when parties can’t agree what is to happen to the matrimonial home
  5. What can you do to protect your home in the event of a divorce

It is important to note at this stage, that this post is intended only for married spouses.  There are separate legal considerations that are relevant to your situation if are cohabiting spouses (otherwise known as “common law” spouses).

What is a matrimonial home?

The Ontario Family Law Act defines a matrimonial as “Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home”.  For example, if you buy a house prior to the date of marriage and your spouse moves in with you after you are married, this house becomes your matrimonial home because it is ordinarily resident by you and your spouse.

The definition of matrimonial home also does not limit the designation to only one home, as it includes “every property …”.  For example, if you also have a cottage, which you and your spouse spend time a significant amount of time at.  This cottage may be considered ordinarily occupied by you and your spouse as a matrimonial home and will be treated as such, even though it is not your primary home.

It is also possible for a house to lose its designation as a matrimonial home.   Let’s say you retire.  Upon retiring you decide you want to move to the cottage and no longer want to live in your home.  You then rent out the house for income, and no longer reside there.  This house is no longer considered a matrimonial home, because the parties are no longer ordinarily resident there.  The house will then loose its designation as a matrimonial home and be treated similar to any other asset in family decision process.

How is the Matrimonial Home Treated in Property Division?

In order to understand how the matrimonial home is treated in property division, it is important to have a basic understanding of how property division work.   Basically, each party determines their net family property and then the party with a higher net family property is responsible for paying half the difference between the two amounts.  In order to calculate net family property, both parties take their total assets on the date of separation and subtract their total debts as well as anything property which is exempt from property division, such as inheritance or gifts.  Each party then subtracts the value of their pre-marriage property from their separation date property.  These numbers are compared, and the party with the higher number must make an equalization payment.

The matrimonial home is given special treatment within property division in several respects.  The first is that if a party owned the matrimonial home on the date of marriage, the pre-marriage value of the home cannot be subtracted.  For example, you owned a home worth $300,000.00 on the date of marriage.  The home is worth $500,000.00 on the date of separation.  You cannot deduct the $300,000.00 as pre marriage property, as you would be able to do with other assets.  You must include the entire $500,000.00 as part of your net family property

Another way that the matrimonial home is treated differently is that exemptions related to gifts and inheritance does not apply, if they were used to buy or improve a matrimonial home in some way. Typically, inheritance and gifts are exempt from equalization and therefore are not included in equalization payments.  In addition, assets to which gifts and inheritance can be traced are also exempt from equalization.  However, once these gifts or inheritances are used to improve the matrimonial home, an exemption can no longer be claimed.  For example, let’s say you inherit $30,000.00 from a relative.  This amount would typically be exempt.  If however, you use it as a down payment to buy a new house; you lose the protection of this inheritance.

A further issue arises if you inherit a house and decided to use it as the family home.  A house that would otherwise be exempt as inherited property loses its exemption when you and your spouse decide to live there. For example, if your mother leaves you a beautiful fully detached Victorian home in downtown Toronto, and you decide to live there with your wife and kids, the entire value of that property will be included in your net family property calculation for purposes of equalization.

What Does Possession of the Matrimonial Home Mean and Should I be Concerned?

It comes as a surprise to many people that, in property division, spouses do not share in the underlying property itself, but in the increase in value of the property across the marriage.  This means that if you own a house, you still own that house upon equalization, even if the house was the matrimonial home.

It is important however, to distinguish ownership form possession.  In other words, you can potentially own something but not be in possession of that thing.  A good example is if you lease a rental property to someone else. While you are still the owner of that property, you have a contract setting out that your tenant will have the right to possess the property for a fixed or indefinite period of time.

There are also special provisions surrounding possession of the Matrimonial home.  First, spouses have an equal right to possession of the matrimonial home while they are spouses.  This means that you cannot unilaterally exclude your spouse from the matrimonial home, even if you own it.  This remains true after separation, until the parties are no longer spouses, or there is a separation agreement or court order that addresses this issue.

A spouse may apply to the court for exclusive possession of the matrimonial home.  This means that regardless of ownership of the house, one spouse may be excluded from the property for a period of time that the court directs.  There are several factors a court will consider in deciding whether to order exclusive possession of the matrimonial home.  These include the best interests of any children affected, any existing property orders and any existing support orders or obligations, 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.  A spouse to whom exclusive possession is order may be required to pay occupation rent to the other spouse.

If an order for exclusive possession is made against you, it is important that you follow it.  There can be significant consequences for breaching an order for exclusive possession.  This includes a fine up to $5000.00 or a prison term of up to three months or both for a first breach.  In the case of a second breach, a court may order a fine of up to $10,000.00 and to imprisonment for a term of not more than two years or both,

What if We Cannot Agree on What to Do With the Matrimonial Home?

If the parties both have a property interest in the home and are unable to agree on what to do with the matrimonial home, one party may apply to court for an order of partition and sale.  The court will order that the parties are to sell the house and split the proceeds based on their interest in the property.  There is no right of first refusal within family law.  If the house is ordered to be sold, the party wishing to stay in it, must bid on the open market with all other buyers.

I Have a Home and I am About to Get Married.  What Can I Do to Protect My Home?

If you own a home or are contemplating buying a home for you and your current or future spouse to move in with, you may consider entering into a domestic contract with your spouse. A domestic contract is an agreement between you and the other party that sets out each party’s rights and obligations upon separation.  For example, if you own a home, part of the agreement might say that the home will not form part of net family property.  This means that your house will not be considered as part of your net family property when you determine whether or not an equalization payment is owed.   A domestic contract can be negotiated either in anticipation of marriage or after a marriage has already happened.  It is important to note, however, that possession of the home cannot be subject to a domestic contract.  Courts always retain discretion to grant one party possession of the matrimonial home for a period determined by the courts.

If you decide to enter into a separation agreement, it is important that you retain a lawyer to help you with the process and give you legal advice.  The lawyers at Galbraith Family Law (GFL) have assisted many clients in negotiating and drafting domestic contracts.  Retaining one of our lawyers will ensure you comply with all of the requirements required to enter into a valid domestic contract and that the contract itself is clear, concise, and anticipates issues which may arise in the future.

Written by Andrew Cox. Family Law lawyer at Galbraith Family Law. To book a consultation with Andrew, please click here.

in Pets and animals

Cats and Dogs and Family Law

German Shepherd Dog and cat together

I love our family dogs, Becky and Ryder.  My husband loves Ryder and Becky, too! I love my daughter’s cat, Enoki. In fact, my husband loves Enoki, too!

Are dogs and cats just property? No, they are not. In Ontario, there is case law to say that dogs in particular have “feelings, are capable of affection, need to be shown affection and that a dog’s affection can be alienated; that its needs must be provided for and that, generally, it must be treated humanely and with all due care and attention to its needs and that these factors are to be considered as well in determining the right to possession or access thereto.”

Where there are competing claims for family pets, the court should be mindful of the fact that inanimate objects should be treated differently from family pets.

A 2001 IPSOS-Reid research study found that “Eight in ten of the pet owners … (83%) consider their pet to be a family member; only 15 percent said they love their pet as a pet rather than as a family member. This perception of the pet as family translates into ‘parental’ behavior for many pet owners: seven in ten (69%) pet owners allow their pets to sleep on their beds and six in ten have their pet’s pictures in their wallets or on display with other family photos. Almost all pet owners (98%) admit to talking to their pets.”

The nature of the relationship between an owner and a pet dog is qualitatively different from the relationship between an owner and all other forms of personal property. Most people view a pet as “a member of their family to be cared for until death, not a possession to be bought and later sold in a garage sale or on craigslist or given away to charity when it is worn, outgrown, out of date or no longer needed or desired by its owner.”

The treatment of the dog or cat in the custody of the owner and the best interests of the dog or cat are factors that can and must be taken into account in family law proceedings.

Written by Lynn Kirwin. A family law lawyer at Galbraith Family Law. To book a consultation with Lynn please click this link.