Laura Kanaan – July 2018
When it comes to the complexities of divorce and family law in Canada, there is a lot of information out there. Especially in the age of the internet. Some of it is fact, but some is not. Here are the top five misconceptions that I encounter when working with my clients.
MYTH # 1 – The affair is going to cost them.
It is commonly believed by people who have been cheated on that they should be financially compensated for their pain. It is also common for the person who did the cheating to believe they will pay for their indiscretion – literally. But while an affair is a tremendously difficult event for separating couples, it in itself does not give the court the discretion to award a greater monetary settlement.
Divorce in Canada is no-fault. That means one partner’s affair will typically not be considered when dividing assets or calculating support. An affair also doesn’t mean one parent will get less parenting time. The Divorce Act specifically directs that past conduct will not be considered unless it relates to that person’s ability to act as a parent.
The exception might be a celebrity couple with a prenuptial agreement that specifically identifies costs for cheating. Yes, these exist, but they are rare with most couples. So while the emotional cost may be high, there is typically no financial impact of an affair on settlements.
MYTH # 2 – Mothers always get custody.
When it comes to parenting arrangements, there is no presumption in favour of either parent. Any notion that mothers will automatically have primary care and custody is outdated and simply not reflective of the current state of the law. If anything, I have noticed a shift towards assumptions that all parenting arrangements should be equal (or shared) unless there is a reason to grant primary care to one parent. Ultimately, however, the court is guided only by the best interests of the children, which will vary based on the facts of each individual case.
MYTH # 3 – No money, no kids!
This one is simple: you cannot withhold parenting time because someone has failed to pay child support, nor can you withhold financial support because someone is denying you parenting time. Everyone has a legal duty to financially support their children, and children have the right to spend time with both parents to the extent that it is in their best interests. The two concepts are not tied to one another. It is not within your rights to deny your child financial support or contact with the other parent, and courts are quick to reprimand people who do either.
MYTH # 4 – The matrimonial home – who stays and who pays?
This myth contains three sub-myths:
- One person has to leave the matrimonial home when parties separate;
- The person who leaves the family home loses their rights to the home; and
- The person who leaves still has to pay 50% of the mortgage on the home.
- Typically, both parties are entitled to remain in the matrimonial home. Neither has more right to the home than the other. So no, you can’t go change the locks on the home while the other person is at work. For financial or logistical reasons, many couples continue to live together in the matrimonial home for a period of time after they separate. However, if this is not appropriate, one person can apply for exclusive possession of the home. These orders are not guaranteed, however. There are very specific legal tests that need to be met before courts will force a person out of the home. Until that time, the home is fair game.
- Leaving the home does not mean you are giving up any property rights to it. There is no presumption that one person will keep the home. The final disposition of the home will depend on many factors such as each party’s ability to assume the costs of the home, whether one spouse can pay the other out for equity in the home and whether both parties want to keep the home. The departing spouse can ask to keep the property, be paid out for its value or have the property sold in a final agreement or court order. In fact, unless there is an order for exclusive possession, both spouses are allowed access to the property. However, a word of caution is warranted here. If you’ve agreed to leave the home voluntarily, it is courteous to give your former partner a head’s up if you plan to go back for whatever reason. This can be difficult for the person occupying the house because they still view the house as belonging to them, which technically it does. Picture the shoe on the other foot; an unannounced visit from your former spouse. It is always wise to announce your intentions.
- The issue of who pays the ongoing costs of a home can be complicated. Even with parties jointly named on a mortgage, there is no family law presumption that parties will split the carrying costs of the home equally after separation. It is a fact-based analysis that is beyond the scope of this article. I usually recommend people try to come up with reasonable financial arrangements to ensure both parties can meet their expenses until a final agreement can be reached. However, all parties should be aware that the creditors are not necessarily concerned with whether you are separated or who is residing in the home. If you are named on a mortgage, your credit will be impacted if payments are not made, even in the face of an agreement. Keep that in mind when making a decision about leaving the home.
MYTH # 5 – A child gets to choose which parent they live with when they are 12 years old.
There is no magic age at which a child can choose where they want to live. One might say a child’s opinion will never be the only factor in determining where they live, but telling a 17 year-old where to live might present its own set of challenges.
The test will always be the best interests of the children. While as children get older, their wishes will become more relevant, there is no set age after which judges place more weight on their views. Often it will depend on the child’s age, maturity level and whether there is any parental manipulation or coaching. It is possible that children younger than 12 will have their views seriously considered and it’s also possible judges will not factor in the wishes of a child over 12 for various reasons.
The best way to get accurate information about your rights and obligations is book a consultation with a family law lawyer such as at MDW Law.