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In Ontario, several laws and legal mechanisms are in place to address domestic violence comprehensively:

1.The Domestic Violence Protection Act: This legislation empowers courts to issue restraining orders, known as peace bonds, to protect individuals who fear for their safety due to domestic violence. Peace bonds restrict the contact an abuser can have with the victim and may include other conditions deemed necessary for the victim’s safety.

2.The Family Law Act: This Act provides avenues for victims of domestic violence to seek protection and support during family law proceedings, such as divorce or child custody disputes. It recognizes the impact of domestic violence on family dynamics and allows courts to consider such factors when making decisions.

3.The Criminal Code of Canada: Various provisions within the Criminal Code address domestic violence, including assault, uttering threats, and criminal harassment. These offenses carry significant penalties, and law enforcement agencies in Ontario take them seriously, often prosecuting offenders to the fullest extent of the law.

4. The Child and Family Services Act: This legislation prioritizes the safety and well-being of children in cases involving domestic violence. It allows child protection authorities to intervene when children are at risk of harm due to domestic violence, including removing them from dangerous situations and providing necessary support services.

Challenges and Solutions

Despite the existence of robust legal frameworks, several challenges persist in effectively addressing domestic violence in Ontario:

1. Underreporting: Many instances of domestic violence go unreported due to fear, shame, or cultural barriers. Encouraging victims to come forward and seek help remains a significant challenge.

2. Access to Justice: Victims of domestic violence, particularly those from marginalized communities, may face barriers in accessing legal resources and support. Ensuring equitable access to justice for all individuals is crucial in addressing this issue.

3. Resource Allocation: Adequate funding and resources are essential for supporting victims of domestic violence and implementing preventive measures effectively. Government agencies, non-profit organizations, and community groups must work together to ensure sufficient resources are allocated to combat domestic violence.

4. Prevention and Education: While legal measures are essential, prevention through education and awareness is equally vital. Comprehensive education programs aimed at promoting healthy relationships, conflict resolution, and bystander intervention can help prevent domestic violence before it occurs.

Conclusion

Domestic violence is a complex and pervasive issue that demands a multifaceted response. In Ontario, the legal framework provides important avenues for protecting victims, holding perpetrators accountable, and promoting safety within families. However, addressing domestic violence requires a collaborative effort involving government agencies, law enforcement, community organizations, and individuals alike. By working together to raise awareness, provide support, and implement preventive measures, Ontario can continue striving towards a future free from domestic violence.

*The above is drafted by Soica Law Professional Corporation and not intended as legal advice.

Definition of Common-Law Relationships

In Ontario, common-law relationships are defined under the Family Law Act. According to this legislation, a common-law relationship exists when two individuals have lived together in a conjugal relationship continuously for at least three years. Additionally, the Act considers couples who have lived together for less than three years but have a child together as common-law partners.

Rights and Obligations

1. Property Rights: Common-law partners in Ontario do not automatically have the same property rights as married couples. However, if a common-law relationship ends, each partner may be entitled to a share of property acquired during the relationship if they can demonstrate contributions to its acquisition or maintenance.

2. Spousal Support: Unlike married couples, common-law partners do not have an automatic entitlement to spousal support under Ontario law. However, if one partner can establish financial dependence on the other and significant contributions to the relationship, they may be eligible for spousal support upon separation.

3. Children’s Rights: Common-law partners share similar rights and responsibilities regarding children as married couples. This includes custody, access, and child support obligations.

Cohabitation Agreements

To clarify rights and responsibilities in a common-law relationship, couples in Ontario can enter into cohabitation agreements. These legal contracts outline how property, finances, and other matters will be handled in the event of a relationship breakdown. Cohabitation agreements can help prevent disputes and provide clarity for both partners.

Legal Recognition and Registration

Unlike marriage, common-law relationships in Ontario do not require registration or formal recognition by the government. As long as the criteria for a common-law relationship are met, the couple is considered legally together under Ontario law.

Legal Reform

It’s essential to stay informed about any changes to Ontario’s family law that may impact common-law relationships. Legal reforms or court decisions can affect common-law couples’ rights and obligations, so seeking legal advice is advisable, especially when significant changes occur.

Conclusion

While common-law relationships offer many of the same rights and obligations as marriage under Ontario law, there are important distinctions to be aware of. Understanding the regulations governing common-law partnerships can help couples navigate their relationships effectively and make informed decisions about their legal rights and responsibilities. Seeking legal advice, particularly when considering property division, spousal support, or cohabitation agreements, can provide clarity and peace of mind for common-law partners in Ontario.

*The above is drafted by Soica Law Professional Corporation and not intended as legal advice.

Eligibility for Spousal Support:

In Ontario, spousal support may be awarded to married or common-law spouses who experience economic hardship as a result of the relationship breakdown. Factors influencing eligibility include the length of the marriage or cohabitation, the roles each spouse played during the relationship, and their financial needs and means.

Calculating Spousal Support:

Determining the amount of spousal support in Ontario involves assessing various factors, including each spouse’s income, earning capacity, assets, and financial obligations. Courts may consider the Federal Spousal Support Advisory Guidelines, which provide a framework for calculating spousal support based on factors such as the length of the relationship and the presence of dependent children.

Duration of Spousal Support:

The duration of spousal support in Ontario can vary depending on the circumstances of the relationship and the needs of the spouses. Spousal support may be awarded for a specified period (i.e., definite duration) or until certain events occur, such as the recipient spouse’s remarriage or cohabitation. In some cases, spousal support may be ongoing (i.e., indefinite duration), particularly in long-term marriages or when one spouse is unable to become financially self-sufficient.

Modification of Spousal Support:

Spousal support orders or agreements in Ontario are not necessarily set in stone and may be subject to modification under certain circumstances. Changes in either spouse’s financial situation, health, or living arrangements may warrant a review of spousal support arrangements. Parties can seek to modify spousal support through negotiation, mediation, or court application, depending on the nature of the change and the level of cooperation between the parties.

Enforcement of Spousal Support:

Ensuring compliance with spousal support obligations is essential for the financial stability of the recipient spouse. In Ontario, spousal support orders are enforceable through various means, including wage garnishment, court-issued enforcement orders, and the enforcement of arrears through the Family Responsibility Office (FRO). The FRO plays a crucial role in collecting and distributing spousal support payments, thereby safeguarding the rights of recipients.

Spousal support in Ontario plays a vital role in addressing economic disparities between spouses following separation or divorce. Understanding the eligibility criteria, calculation methods, duration considerations, and enforcement mechanisms is essential for both payors and recipients of spousal support. By seeking legal guidance and exploring available resources, individuals can navigate spousal support matters with clarity and confidence, ensuring fair and equitable outcomes for all parties involved.

*The above is drafted by Soica Law Professional Corporation and not intended as legal advice.

Parenting After Separation

The current Act discusses the care of the child in terms of custody and access. Under the new Act, the terms “custody” and “access” will be replaced with decision-making responsibility, parenting time and contact. Instead of custody and access, spouses will instead create parenting plans upon their separation which sets out their plan as to decision-making, parenting time and contact. Where the parties cannot agree, the court will have the power to make parenting orders.

Decision-making responsibility is a spouse’s duty to make important decisions about their child’s life and will replace the term “custody” under the amended Act. Under the new legislation, decision-making responsibility can be shared between spouses or designated to just one.  

Parenting time is the time a child is in the care of one spouse and will replace the term “access”. Parenting time means that each spouse will have the authority to make day-to-day decisions which affect their child during their parenting time.

Contact is the time someone who is not a spouse has with a child, including the child’s grandparents and other important adults in their life. Contact will not provide the non-parental adult with any decision-making rights.

The Best Interests of the Child

Under the current legislation, the court must only take the best interests of the child into account when making orders about custody and access, however what this entails is laregely undefined. Under the updated legislation, an extensive list of factors to consider when deciding what is in the best interest of the child has been included. This list includes:

• The nature of the child’s relationship with each spouse, with siblings and with other important people in the child’s life;
• Each spouse’s willingness to encourage the child’s relationship with the other spouse;
• The child’s views and preferences;
• The child’s cultural and linguistic upbringing, including the child’s Indigenous heritage;
• The ability of each spouse to care for the child;
• The presence of any civil or criminal court actions and orders that are relevant; and
• The presence of family violence.

Family Violence

At present, the Divorce Act does not include measures for dealing with family violence. The amendments have attempted to rectify this issue. Under the updated legislation, where family violence is present, the ‘best interest of the child’ factors listed above require the court to consider how such violence affects the ability of a spouse to care for the child. The court must now consider the appropriateness of making a parenting order that would require a victim of family violence to cooperate with their abuser. The courts must also consider the following factors:

• The nature, seriousness and frequency of family violence;
• Whether the family violence indicates a pattern of coercive and controlling behaviour;
• Whether the violence was directly at the child or the child was indirectly exposed to it;
• The risk of physical, emotional, and psychological harm to the child; and
• Any steps taken by the person committing the violence to prevent future violence.

These new factors, in large part, are a reflection of developments in case law over the years in the determination of custody and access, as well as factors that have already been outlined in various provincial legislation applicable to parents who are not married.

Mobility

Other changes to the Divorce Act include issues that arise when parents wish to relocate following a divorce, with or without the child. The new legislation requires the spouse to give notice of plans to move, including all key information about the potential move. Notice must be given 60 days prior to any move. After receiving a notice of relocation, the receiving party has 30 days to object.

If the receiving party objects to the move, the court must consider the best interests of the child as well as other factors, such as the reasons for the move, the impact the move would have on the child and the reasonableness of the parenting plan proposal.

Where family violence is an issue, the court will be able to modify or waive the notice requirements.

Conclusion

While some may feel that these changes are a large leap for the legislators to make, the Children’s Law Reform Act (CLRA) which is the governing legislation in Ontario on custody and access, already includes a series of similar provisions. In fact, many lawyers have used the CLRA in cases of divorce because the legislation was persuasive to Ontario judges and the provisions within the CLRA went beyond the Divorce Act. 

However, the upcoming amendments to the Divorce Act have attempted to go a step further than the CLRA. The amendments place a greater emphasis on each parent’s ability and willingness to foster a relationship with the other parent. The amendments have also added a  requirement that the child’s cultural and religious upbringing, including Indigenous heritage be considered, and a requirement for the courts to consider civil and criminal proceedings that are relevant to the safety of the child.

It is important that you contact a lawyer for legal advice if you believe that any of these upcoming changes may affect you and your legal matter, particularly if you have a family matter before the courts which will not be concluded prior to March 1, 2021.

*The above is drafted by Soica Law Professional Corporation and not intended as legal advice.

Although the scope of redress is narrow, there are a number of solutions that a client may opt to pursue both in regular family proceedings and child protection proceedings if they have concerns that their former partner’s behaviour may have a negative impact on the child.

One option a client may pursue is to minimize, albeit not eliminate, the time that the child spends with the former partner in order to restrict the exposure that the child has to the new partners. This would be done through a court order to vary the current parenting arrangement. For an order such as this to be successful, judges would consider several factors with regard to the best interest of the child.

If the child begins to demonstrate troubling behaviour following access with a former partner and their new partner, a court may order that any access moving forward be supervised and not take place with the partner’s new ‘family’. In cases such as this, the court may request that a qualified professional, such as the Office of the Children’s Lawyer, become involved to make recommendations as to what is in the best interests of the child.

On the more serious side of the spectrum, if there is a risk that the child is being exposed to abuse or inappropriate behavior due to a new partner, there may be child protection concerns to consider. In such a case, the Children’s Aid Society would get involved and potentially launch an investigation, which can be complex and extensive. You should contact a lawyer as soon as possible to help you navigate the process.

*The above is drafted by Soica Law Professional Corporation and not intended as legal advice.

However, case law shows us that, in cases of early retirement, spousal support may continue and that applying to have support varied must meet a very high threshold before the court.  An “early” retirement is either retirement with a reduced pension or retirement with a full or unreduced pension before the age of 65, in the absence of health issues or other special circumstances. If the court sees the early retirement as “voluntary” and not necessary or reasonable, then it is likely that quantum of spousal support will not be changed.

When the payor retires “early” and seeks a reduction in spousal support, the payee may place a great emphasis on the payor’s decision to retire. In some cases, the courts have found the decision to retire early to be reasonable but have still imputed a part-time employment income to the early retiree for the purposes of support. The effect of this imputation means that the amount of support to be paid remains more or less unchanged. In Donovan v. Donovan, 2000 MBCA 80, the court imputed income to a payor, in addition to the pension received upon retirement; this effectively brought the retired payor back to his pre-retirement income level. In Stephen v. Stephen, 2004 SKQB 386, a part-time income was imputed even where the payor retired early because of stress and various physical ailments, which resulted in an income for the purpose of support between the payor’s actual pension income and his former full-time income. These cases demonstrate how difficult it is to have support varied or terminated in cases of early retirement.

When drafting domestic contracts, a lawyer may draft provisions for retirement as an explicit ground of review for support, especially where the retirement is likely to occur in the near future as a “genuine and material uncertainty”. In cases such as these, there is no need to prove a “material change,” which may in turn make it easier to have support varied. As such, the domestic contract is an excellent tool to minimize risk and provide certainty to spouses that are concerned about retirement.

*The above is drafted by Soica Law Professional Corporation and not intended as legal advice.

In order to remedy this issue, Canadian courts have previously ordered that the owner of foreign assets must sell the foreign property and that the proceeds of sale be used to honor their obligations for equal division of property in Canada.

One of the first cases where the courts made such an order, Macedo v Macedo (1996), involved a couple from Portugal who then moved to Ontario. The couple had assets in both Canada and Portugal, however the property in Portugal was in the husband’s name only. Rather than succumb to an unequal division of property at the expense of the wife, the court exercised their “in Personam” jurisdiction to order that the husband either sell the Portugal property, or pay the wife her share of its value (paragraph 19).

Another way Canadian courts have addressed the potential unequal division of property is by including the value of foreign assets when calculating the equalization of family property, and granting one spouse a greater share of the Canadian assets in order to balance out the share of foreign assets to which they are not a named owner. However, this is a viable avenue only if there are sufficient Canadian assets to equalize.

Although Canadian courts have developed these methods to ensure compliance with equalization of family property under Canadian law, there is always a risk that the owner of foreign property will not comply with a court order, leaving the other spouse with no means to collect their fair share. While enforcement of the above orders may be difficult for Ontario courts, as the Ontario Superior Court of Justice noted in Potter v Boston, [2014] O.J. No. 1781, a Canadian court may find a spouse in contempt for failing to follow a court order (paragraph 20).  In practice, contempt orders are not always effective, especially if the spouse no longer resides in the country.

*The above is drafted by Soica Law Professional Corporation and not intended as legal advice.

In an attempt to provide greater certainty, clients will often seek to include mobility rights in their domestic contracts. However, despite an intent and clause in a domestic contract to limit the other parent’s ability to live where he or she wishes with the child, the term is often not enforceable. Most of the case law in Ontario in the last decade has emphasized the best interests of the child as the determining factor when considering mobility if one party wishes to relocate with the child.

Mobility, therefore, can be a frustrating problem due to its inconsistency. The issue of whether a party can or cannot relocate with the child outside the current agreed upon jurisdiction can only be addressed by the courts at the relevant time, taking into account all of the factors set out in Gordon v. Goertz [1996] 2 SCR 27. Historically, the reason for the move was often cited by the court to be irrelevant. In recent cases, however, the court in hallmark cases has focused on the reason for the move in addition to the factors set out in Gordon v Goertz: the relevant circumstances of the child, the existing residency and custody arrangement, the desirability of maximizing contact between the child and both parents, the views of the child (if they are of sufficient age), the custodial parents reason for moving, and the disruption the move may have on the child.

It is important that the parent proposing the relocation should provide a detailed plan to maintain as much contact as possible with the parent remaining in the current jurisdiction.

Given that we live in an increasingly global world, these cases are before the court more regularly than prior years. While the decisions continue to be based on the circumstances of the particular case and the child’s best interests, the legal profession has called for greater certainty from the courts on these cases to better serve our clients.

*The above is drafted by Soica Law Professional Corporation and not intended as legal advice.