• competent and even handed advice as to their rights and obligations so that they can consider their options and make the right choices;
• effective and determined representation in the negotiation and/or litigation of their Family Law issues.

Such agreements are useful, especially for second or subsequent relationships, for persons who wish to have a clear understanding as to:

• who will pay the expenses during the relationship
• whether or not either will have to support the other after separation or death
• how assets will be divided after separation or death

A Separation Agreement is a private written contract which settles the issues which follow separation. Normally these issues include a parenting arrangement for children, child and spousal support and equalization of property.

Each party should have independent legal advice and each should make full financial disclosure as part of the agreement process. In this way the parties will have a binding agreement which will allow them to go forward in their lives, confident that all issues have been settled.

The lawyer's job is to carefully review the factual and financial background, provide a summary of the relevant laws, consider and recommend options and choices and take instructions for negotiation of terms for a Separation Agreement.

Separation Agreement negotiations involve an exchange of financial information and ideas for an agreement. Frequently the parties and their lawyers will meet to try and settle differences.

Where there are difficult issues the parties will be encouraged to use the services of a mediator.

If a settlement is reached it will be put into writing and will become the parties' Separation Agreement.

If there are difficulties with enforcement of the terms of the agreement, it can be filed with the Court and enforced as if it was a Court Order.

Where this is not possible, either party may make an application to the Court so that a judge can decide the issues by Court Order.

Each party is required to serve and file a Case Conference Brief (a summary of the facts and issues).

Examples of issues dealt with in temporary orders:

• custody and access
• child and spouse support
• exclusive possession of home
• restraining order

Unlike married persons, common law partners do not have a right to an equalization of property. This fact has been confirmed in a recent decision given by the Supreme Court of Canada. That decision would appear to reverse a trend in Canadian Courts to increasingly recognize the right of common law partners to be compensated for services provided within a common law relationship. The following commentary summarizes the situation prior to this latest decision and will be updated as the impact of that decision receives more consideration:

1. Unjust Enrichment - Damages
In the right circumstances a common law partner may assert a claim for the payment of damages to compensate for the value of services provided without pay during cohabitation. In law this is a claim for damages for unjust enrichment.

In the headnote to the Peter v. Beblow case, decided in the Supreme Court of Canada in 1993, the following appears:

"Services given on the voluntary assumption of the role of wife ... give rise to a remedy based on an unjust enrichment. Generally a common law spouse owes no duty at common law in equity or by statute to perform work or services for the other party to the relationship. Homemaking and child care services may, in a relationship, give rise to equitable claims against the other party. It is not unfair for a recipient of indirect or non-financial contributions to be forced to provide recompense for those contributions. Domestic services cannot logically be distinguished from other contributions. The test as to whether there is an unjust enrichment without juristic reason is flexible and the factors to be consider vary.

Equity finds a role where an injustice without a legal remedy exists. The Courts can use the equitable doctrine of unjust enrichment to remedy the situation even though the legislature has chosen to exclude unmarried couples from the right to claim an interest in the matrimonial assets on the basis of contribution to the relationship."

In such cases a value is determined for the domestic services provided. This value may be discounted to reflect the value of benefits received by the claimant from the relationship.

In the Peter v. Beblow case the parties cohabited for 12 years, during which the claimant did most of the housekeeping and acted as stepmother to her spouse's child. In this case, which first came before lower Courts in the 1980's, these services were given a value of $350.00 per month and then reduced by 50% for benefits received.

A successful proceeding based on unjust enrichment will result in an order for the payment of a sum of money (damages) from one spouse to the other.

Where monetary damages are inadequate to provide a fair result a common law spouse may assert an entitlement based on the law of resulting or constructive trust. Essentially the claimant is asking the Court to look at the circumstances of the relationship and to decide that the spouse who is the registered owner of the property (usually the home where the parties have been residing) is holding at least part of his ownership in trust for the claimant. In these cases the likelihood of success will usually depend upon being able to show that there is a direct connection between the contributions which the claimant has made and the property in question. In the Peter v. Beblow case the Court found that the claimant's contributions not only enhanced or improved the appearance and value of the property, but also gave the Respondent the opportunity to pay down his mortgage and purchase other assets. The Court decided that the claimant had contributed substantially and that she was entitled to a declaration giving the claimant an interest in the property equivalent to the value of the services which she had provided.

Where the parties have an understanding (at least verbal) that such services are being provided on the basis that both parties will share the benefits of ownership, even though the property is registered in the name of only one of the parties, the Court will find that a "resulting trust" exists - "resulting" from the parties' understanding.

Where there is no such understanding but the services are provided in the reasonable expectation by the party providing the services that she will share in the benefits of ownership of the property and if her spouse is thereby enriched the Court will "construct" a trust from these facts and find that a constructive trust exists.

In either case a Court order is made that the claimant is a part owner of the property and able therefore to compel payment for the services which have been provided.

This initiative coincides with a growing recognition by parents, lawyers and judges that issues relating to the parenting of children are best resolved in the family mediation process or by way of collaborative family law.

Notwithstanding the foregoing, many couples will continue to need the Court's assistance in the determination of parenting issues. In all such cases the basic test which is applied by the Courts in deciding any issue relating to children is "what is in the best interests of the child".

In proceedings under the Divorce Act, Section 16 is relevant and in part provides as follows:

16.(8) Factors - In making an order under this section, the Court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

(9) Past Conduct - In making an order under this section, the Court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of the child.

(10) Maximum Contact - In making an order under this section, the Court should give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

In proceedings under the Children's Law Reform Act, Section 24 is relevant and provides as follows:

(24. (1) Merits of application for custody or access - The merits of an application under the Part in respect of custody of or access to a child shall be determined on the basis of the best interest of the child.

(2) Best interests of child - In determining the best interest of a child for the purposes of an application under this Part in respect of custody of or access to a child, a Court shall consider all the needs and circumstances of the child including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child's family who reside with the child, and
(iii) persons involved in the care and upbringing of the child;

(b) the views and preferences of the child, where such views and preferences can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) any plans proposed for the care and upbringing of the child;

(f) the permanence and stability of the family unit with which it is proposed that the child will live; and

(g) the relationship by blood or through an adoption order between the child and each person who is party to the application.

(3) Past conduct - The past conduct of a person is not relevant to a determination of an application under this Part in respect of custody or access to a child unless the conduct is relevant to the ability of the person to act as a parent of a child.

CUSTODY AND ACCESS - FREQUENTLY DISPUTED ISSUES

1. Decision Making
Traditionally referred to as the argument between sole or joint custody, this issue deals with the extent to which both parents should be involved in decisions relating to children. Generally speaking, Courts have favoured joint decision making where parents discuss and mutually agree to the decisions involving the children. On the other hand when the communication between parents is poor or non-existent and it is unlikely that mutual decisions will be made the Courts have preferred to give one parent this authority. Usually this is coupled with a requirement that the decision making parent keep the other parent fully informed in respect of all matters of importance relating to the children.

Decision making following separation involves communication in the difficult circumstance which often prevail following separation. This aspect lends itself very much to family mediation and collaborative family law rather than Court imposed direction.

2. Timesharing
Traditionally referred to in terms such as "primary care", "principal residence" or "shared custody" this issue deals with when the children will be with one or the other parent and how the exchanges will take place.

The possibilities and variations are limitless. Regard must be for the statutory guidelines in the Divorce Act and the Children's Law Reform Act, (referred to above).

Typically the following factors are give the greatest importance:
a) the extent to which each parent has been involved in the children's care before separation;
b) the ability of each parent to provide a loving and stable environment;
c) the ability of each parent to provide for the children's physical and emotional needs.

Other factors frequently given importance are:
a) younger children need to see each parent more frequently than older children;
b) generally that siblings should be kept together;
c) the wishes of the child - which become increasingly important as the child gets older and which can be determinative by age 13 to 15, depending upon the child's level of maturity;
d) that, to the extent possible, the parenting arrangement should not be disruptive or create unnecessary difficulties for the child
eg. - exchanges too frequent - disruptive
- exchanges involve the child in too much travel
- parents unable to avoid angry confrontations during exchanges

Notwithstanding the statutory guidelines and extensive case law, the results of litigation about timesharing are often unpredictable. Some judges favour the idea that children should have one place that they think of as home rather than two. Other judges feel just as strongly that the children's time with each parent should be maximized and that they can be comfortable with two homes. Almost every judge will be frustrated by a couple's inability to reach agreement about small differences in a timesharing arrangement.

Timesharing is another aspect which is well served by family mediation and collaborative family law, where a couple can tailor their parenting arrangement to their particular family needs.

The timesharing issue is complicated by the laws relating to child support (see Child Support). A parent having charge of the children more than 60% of the time can expect to receive child support payments calculated in accordance with the Child Support Guidelines. In an arrangement where the children are with both parents at least 40% of the time, the Child Support Guidelines will not necessarily be applicable and depending upon the parents' respective incomes, the result may be that no child support is payable by either parent to the other. A parent's view as to what is in his/her child's best interests may be influenced by the potential child support obligation, even though strictly speaking, that potential is not relevant to the best interest issue.

3. Mobility
Mobility is the term used to describe the issue where the children are residing with one parent who wishes to move with the children to another location. For parents, lawyers and judges this is often the hardest of all Family Law issues. The parent wishing to move often believes that he/she is doing so for the best of reasons, e.g., to secure meaningful employment, or to move ahead in life with a new partner who is located elsewhere. The parent left behind will normally feel that his/her relationship with the children will be drastically impacted.

The case law relating to this issue is varied and complex. In cases where one parent is regarded as the custodial parent (ie: the children are residing primarily and under the charge of that parent) the best interests of the child will be seen in the context of the best interests of that parent. In cases where there is a joint custodial arrangement (ie: the children's residence and the charge of the children is shared) the court will carefully examine the reasons for the move and try to balance the benefits of the proposed move to that parent and the children against the impact of the move upon the children's relationship with the other parent.

Importance will be given to the degree to which the moving parent has provided ample notice and has made appropriate arrangements for the children's residence, education and health care in the new location. Importance will be given to the extent to which it will be practical and possible for the children to maintain an ongoing relationship with the parent who is not moving.

4. Office of the Children's Lawyer and Private Assessments
The Office of the Children's Lawyer is an agency of the Provincial Government which, upon request by a Court and in appropriate circumstances, will appoint and pay for a lawyer to represent children in a proceeding or alternatively, will commission a social worker assessment in order to provide a report to the Court as to what is in the best interests of a child in the proceeding.

By private arrangement parties can decide not to be bound by the Child Support Guidelines. In the absence of such an agreement the Child Support Guidelines are mandatory.

1.1 The Table Amount
The Child Support Tables, (one for each province) set out the amount payable for one to four children based on the payor's gross annual income (Line 150 of the Income Tax Return). In all cases where the children are under the age of majority (18 years) and living more than 60% of the time with one parent, the other parent is required to pay the Table amount each month to the other parent. (For example, the Table amount payable by someone earning $50,000.00 where the three children reside more than 60% of the time with the other parent, is $986.00 per month). For the same family, if the payor's income was $25,000.00 the Table amount would be $506.00 per month. For the same family where the payor's income is $100,000.00, the Table amount is $1,825.00 per month.

The Table amounts are the result of an extensive study of the real costs of raising children at different income levels and as required by the legislation are applied by Ontario Courts without reservation.

The Table amounts do not take into account the recipient's income, if any. Children who are lucky enough to have both parents working will presumably have a better lifestyle.

For children over the age of 18 the Table amounts are applicable unless a Court decides that this would be inappropriate having regard to the condition, means, needs and other circumstances of the children and the financial ability of each parent to contribute to the support of the children.

Many issues arise in cases where one or more of the children are over the age of 18. Such issues include, -is the child still in school? -if not, is he working? -has the child become financially independent? -is the child away at school? -what are the financial circumstances of both parents? etc.

1.2 Special or Extraordinary Expenses
In addition to the Table amount, a parent can be required to contribute to a child's special or extraordinary expenses. These are expenses not covered by the Table amount. They include such things as daycare, orthodontal treatments, counselling services, post secondary education and extraordinary expenses for extracurricular activities.

Items such as daycare and post secondary education qualify as extraordinary expenses in all cases. Other items such as normal extracurricular activities may not qualify. The Court takes into account the necessity of the expense and its reasonableness having regard to the means (incomes) of the parties and the parties' spending pattern during cohabitation.

For example, skating lessons for a child in a family with combined parental incomes of $100,000.00 would be considered to be a normal extracurricular activity expense and covered by the Table amount. On the other hand, if, prior to cohabitation the same child had been involved in a national competitive skating program, the much greater expense would probably be regarded as an extraordinary expense and not covered by the Table amount.

Expenses which qualify as extraordinary expenses must be shared by the parents in proportion to their respective incomes (after deducting the child's own contributions).

For example, for a child attending university at a cost (for all items) of $15,000.00 per year - father earns $75,000.00 - mother earns $25,000.00 - child contributes $5,000.00 - father's portion of the $10,000.00 remainder is $7,500.00 and mother's portion is $2,500.00.

1.3 Shared Custody
Different rules apply to cases where the children spend equal or almost equal amounts of time with both parents (each parent has the children at least 40% of the time).

The Guidelines recognize that in these cases both parents will have (or may have) significant child care costs.

Various factors are considered including the Table amounts applicable to each parent's income, the increased costs which each parent may have and the condition, means, needs and other circumstances of each parent and the children.

There have been many cases dealing with the question of how much time the children are spending with each parent. If a parent can show that the children are with him/her more than 40% of the time, he/she may be able to significantly reduce a child support obligation. It has been argued that sleeping time, time in school or time of holidays with grandparents should not count. Such issues are usually decided on the basis of which parent is responsible for the children at such times, eg, if the children are sleeping at mother's home, she is responsible for them and this time would be included in the calculation of mother's time with the children.

Sometimes a parent will push (in negotiations or in Court proceedings) for more than 40% of the time with the children in order to avoid child support. Conversely, sometimes a parent will resist equal timesharing in order to maximize support.

1.4 Undue Hardship
Exceptions can be made to the Child Support Guidelines in cases where the Guidelines would result in undue hardship. However, the presumptive rule that the Guidelines are applicable is not easily displaced. Undue hardship has been defined as "unreasonable or unjustified severe suffering".

1.5 Family Responsibility Office
In Ontario when a child support order is made the payments must be made through the Family Responsibility Office (FRO) which is part of the Ministry of Community and Social Services for the Province of Ontario.

The support order is sent by the Court to the FRO, which sends a direction to the payor's employer to deduct from the payor's income and remit to the FRO the support payment.

Parties can withdraw from FRO enforcement and have an arrangement for direct payments.

Parties who have reached private agreements for the payment of child support can use the FRO for enforcement purposes.

2. Spousal Support
2.1 Legislation
The legislative basis for claims for spousal support can be found in both Federal and Provincial legislation.

2.2 The Divorce Act (Federal)
Under the Divorce Act a spouse (either of a man or a woman who are married to each other) is entitled to support pursuant to Section 15.2 which includes the following provisions:

15.2 Spousal Support Order - (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the Court thinks reasonable for the support of the other spouse.

(4) - Factors - in making an order under subsection (1) or an interim order under subsection (2), the Court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabits;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.

(5) - SPOUSAL MISCONDUCT - In making an order under subsection (1) or an interim order under subsection (2), the Court shall not take into consideration any misconduct or a spouse in relation to the marriage.

(6) - OBJECTIVES OF SPOUSAL SUPPORT ORDER - An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

2.3 The Family Law Act (Provincial)
Under the Family Law Act, the right to claim support is extended to common law spouses including same-sex partners who have cohabited continuously for a period of not less than three years, or who are residing in a relationship of some permanence if they are the natural or adoptive parents of a child.

Section 30 provides that every spouse and every same-sex partner has an obligation to provide support for himself or herself and for the other spouse or same-sex partner in accordance with need to the extent that he/she is capable of doing so.

Section 33, which gives Courts the authority to make spousal support orders, includes the following terms:

(8) Purposes of Order for Support of Spouse or Same-Sex Partner - An order for the support of a spouse or same-sex partner should,

(a) recognize the spouse's or same-sex partner's contribution to the relationship and the economic consequences of the relationship for the spouse or same-sex partner;
(b) share the economic burden of child support equitably;
(c) make fair provision to assist the spouse or same-sex partner to become able to contribute to his or her own support; and
(d) relieve financial hardship, of this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).

(9) Determination of Amount - In determining the amount and duration, if any, of support for a spouse or same-sex partner or parent in relation to need, the Court shall consider all the circumstances of the parties, including:

(a) the dependant's and Respondent's current assets and means;
(b) the assets and means that the dependant and Respondent are likely to have in the future;
(c) the dependant's capacity to contribute to his or her own support;
(d) the Respondent's capacity to provide support;
(e) the dependant's and Respondent's age and physical and mental health;
(f) the dependant's needs, in determining which the Court shall have regard to the accustomed standard of living while the parties resided together;
(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
(h) any legal obligation of the Respondent or dependant to provide support for another person;
(i) the desirability of the dependant or Respondent remaining at home to care for a child;
(j) a contribution by the dependant to the realization of the Respondent's career potential;
(k) [Repealed]
(l) if the dependant is a spouse or same-sex partner,
(i) the length of time the dependant and Respondent cohabited,
(ii) the effect on the spouse's or same-sex partner's earning capacity of the responsibilities assumed during cohabitation;
(iii) whether the spouse or same-sex partner has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,
(iv) whether the spouse or same-sex partner has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge or his or her parents,
(v) in the case of a spouse, any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family's support,
(v.1) in case of a same-sex partner, and housekeeping, child care or other domestic service performed by the same-sex partner for the Respondent or the Respondent's family, as if the same-sex partner were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the support of the Respondent or the Respondent's family,
(vi) the effect on the spouse's earnings and career development of the responsibility of caring for a child; and
(m) any other legal right of the dependant to support, other than out of public money.

2.4 Jurisprudence
The Spousal Support Guidelines referred to below continue to be a proposal rather than the law but these guidelines have achieved wide acceptance and application by the lawyers and the Courts in Ontario.

While the Guidelines assist in determining the amount of support payable in a given set of circumstances, the matter of entitlement to spousal support is determined with reference to the Statutes referred to above as they have been interpreted by the Courts in the particular circumstances of each case. The Courts’ interpretation of the legislation is not static, but instead adapts to society’s changing needs.

The following general principles were set out in the leading case of Moge v. Moge decided by the Supreme Court of Canada in 1992:

"The purpose of spousal support is to relieve the economic hardship that results from marriage or its breakdown. All four of the objectives defined in the Act must be taken into account when spousal support is claimed or an order for spousal support is sought to be varied. No single objective, including that of economic self-sufficiency, is paramount. The compensatory spousal support model is able to respond to the diversity of objectives set out is ss. 15(7)(a) to (c). The exercise of judicial discretion in ordering support requires an examination of all four statutory objectives in order to achieve equitable sharing of the economic consequences of the marriage or marriage breakdown. This implies a broad approach with a view to recognizing and incorporating any significant features of the marriage or its termination which adversely affect the economic prospects of the disadvantaged spouse."

In the Bracklow case, decided by the Supreme Court of Canada in 1997 a further review of general principles for spousal support was made:

"There are three conceptual bases for entitlement to spousal support:

(1) Compensatory - The compensatory basis for support finds its source in a number of factors mentioned in the statutes. Under the Divorce Act, compensation arguments can be grounded in the need to consider the "condition" of the spouse; the "means, needs and other circumstances" of the spouse, which may encompass the lack of ability to support oneself due to foregoing career opportunities during the marriage; and "the functions performed by each spouse during cohabitation", which may support the same argument. In sum these compensatory statutory provisions can be seen to embrace the independent, clean-break model of marriage and marriage breakdown.

(2) Contractual - The contractual or consensual basis for support finds its source in s. 15.2(4) of the Divorce Act. Consensual considerations may either create or negate an obligation to support, under appropriate circumstances.

(3) Non-Compensatory - Where compensation is not indicated and self-sufficiency is not possible, a support obligation may nonetheless arise from the marriage relationship itself. The third and fourth objectives of s. 15.2(6) speak to non-compensatory factors. Economic hardship arising from the breakdown of the marriage is capable of encompassing not only health or career disadvantages arising from the marriage breakdown properly the subject of compensation, but the mere fact that a person who formerly enjoyed intra-spousal entitlement to support now finds herself or himself without it. Permitting recovery for the economic disadvantages of the marriage breakdown as district from "the disadvantages of the marriage" is an explicit recognition of non-compensatory support. The goal of promoting economic self-sufficiency is not necessarily tied to compensation for disadvantages caused by the marriage or its breakup (e.g., where the lack of self-sufficiency was caused by a factor unrelated to the marriage, such as the state of the economy or ill health).

The judge must consider all of the above possible bases for support, and any or all of them may figure in the ultimate order, as may be appropriate in the circumstances of the case. Generally, the court must look at the "condition, means, needs and other circumstances of each spouse". This balancing includes, but is not limited to, the length of cohabitation, the functions each spouse performed, and any order, agreement or arrangement relating to support. Depending on the circumstances, some factors may loom larger than others. In cases where the extent of the economic loss can be determined, compensatory factors may be paramount. On the other hand, in cases where it is not possible to determine the extent of the economic loss of a disadvantaged spouse, the court will consider the need and standard of living as the primary criteria together with the ability to pay of the other party. There is no hard and fast rule. The judge must look at all the factors in light of the stipulated objectives of support, and exercise his or her discretion in a manner that equitably alleviates the adverse consequences of the marriage breakdown.

The Act establishes a rationale and a formula for the division of assets following a marriage breakdown.

Sections 5(1), (2) and (7) provide as follows:
5. Equalization of Net Family Properties - (1) When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them.

(2) IDEM - When a spouse dies, if the net family property of the deceased spouse exceeds the net family property of the surviving spouse, the surviving spouse is entitled to on-half the difference between them.

(7) PURPOSE - The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6).

The rationale for this legislation has been described as follows:

(Reeson, 1991 Ontario General Division)

"The intention of the legislature was to articulate the modern view of marriage as a partnership where the parties contribute in different ways, but those contributions are recognized as having equal value and importance in a marriage. If both parties have essentially pulled their weight in the marriage according to their respective abilities, talents, desires and mutual or agreed perceptions of their roles in the marriage, then equalization is the fair result, subject to the equitable principles of unconscionability set out in s. 5(6)."

2. The Formula for Equalization

The formula for equalization of property works this way:

a) The assets owned by each spouse at the date of separation are identified and valued. Half of the value of jointly owned assets are included in each spouse's list of assets.

b) The debts of each spouse at the date of separation are identified and valued. The debt totals for each spouse are subtracted from the asset totals for each spouse.

c) The value of net assets (assets less debts) owned by each spouse at the date of marriage are deducted.

d) The value of any excluded property (gifts, inheritances and the like) are deducted.

e) The final total for each spouse is the net family property for that spouse. The difference in the net family property totals is divided by two. The spouse with the larger total owes the other this amount in order to equalize property.

The formula may be illustrated as follows:

Assume that at the date of separation a husband and wife have the following financial circumstances. Together they jointly own their home and its contents (value $150,000.00). Each owns a vehicle ($10,000.00 value each). They have a joint bank account ($5,000.00). There is a boat owned by the husband ($10,000.00). The husband has registered plans with a value of $50,000.00. The wife's registered plans have a value of $25,000.00. The husband's employment pension has an actuarially appraised value of $100,000.00. There is a cottage owned by the wife, which was gifted to her during the marriage by her parents, and which has been used by the couple together during their marriage. The cottage has a value of $100,000.00.

The debts include a joint mortgage ($50,000.00) and the husband has a Visa ($5,000.00). Neither spouse owned anything of value at the time of marriage. The wife's registered plans can be traced to an inheritance which she received during marriage.

Using these factors the formula can be graphically illustrated as follows:

ASSETS AT SEPARATION	HUSBAND	WIFE
House and Contents	$ 75,000.00	$ 75,000.00
Vehicles	$ 10,000.00	$ 10,000.00
Bank Account	$ 2,500.00	$ 2,500.00
Boat	$ 10,000.00	$ 0.00
Pension	$ 100,000.00	$ 0.00
RSP	$ 50,000.00	$ 25,000.00
Cottage	$ 0.00	$ 100,000.00
TOTAL ASSETS	$ 247,500.00	$ 212,500.00
(LESS) DEBTS
Mortgage	$ (25,000.00)	$ (25,000.00)
Visa	$ (5,000.00)
ASSETS LESS DEBTS	$ 217,500.00	$ 187,500.00
Less Property at Marriage	$ 0.00	$ 0.00
Less Excluded Property: Registered Plan *(cottage not excluded)		$ (25,000.00)
NET FAMILY PROPERTY	$ 217,500.00	$ 162,500.00

EQUALIZATION PAYMENT:

$217,500.00
-162,500.00

$ 55,000.00 divided by 2

HUSBAND OWES WIFE TO EQUALIZE NET FAMILY PROPERTY $ 27,500.00

* The cottage cannot be deducted as excluded property even though it was a gift from the wife's parents because it meets the definition of a matrimonial home, which cannot be part of excluded property. Using the above example if the wife wishes to keep the home and its contents and to assume responsibility for payment of the mortgage, and if the husband keeps the bank account, the adjusted equalization would be illustrated as follows:

SCHEDULE OF ADJUSTMENTS

	HUSBAND	WIFE
EQUALIZATION FACTOR		$ 27,500.00
House and Contents (credit ½ to Husband)	$ 75,000.00
Mortgage Credit (credit ½ to wife)		$ 25,000.00
Bank Account (credit ½ to wife)		$ 2,500.00
TOTALS	$ 75,000.00	$ 55,000.00
(less Wife's credits)	$ (55,000.00)
The wife owes the husband $20,000.00 to adjust equalization of Net Family Property	$ 20,000.00

The formula is intended to provide fairness in all cases, but as is illustrated below, a small change in the facts can produce a very different result.

If in the above example instead of being given a cottage (which the parties used as a matrimonial home) the wife had been given $100,000.00 which she had invested in her own name, these savings could be deducted as excluded property. The wife's net family property would then be only $62,500.00. The difference in net family properties would be $155,000.00 and the husband's equalization obligation would be $77,500.00.

3. Financial Disclosure

The Family Rules (Ontario e-laws Ontario Regulation 114/99) require each spouse to produce a sworn Financial Statement. The statement involves disclosure of all assets and debts with values as they existed at the date of marriage, at the date of separation and at the statement date. Each party is expected to be able to document each of the entries in the statement and where necessary, to obtain appraisals of the value of assets.

Ontario Judges show little patience with parties who fail to make full and complete financial disclosure.

4. Unconscionable Result

The formula for equalization of property is intended to be applicable in all cases unless the Court is of the opinion that equalizing the net family properties would be unconscionable having regard to:

a) a spouse's failure to disclose to the other spouse debts or other liabilities existing at the date of marriage;

b) the fact that debts or other liabilities claimed in reduction of a spouses' net family property were incurred recklessly or in bad faith;

c) the part of a spouse's net family property that consists of gifts made by the other spouse;

d) a spouse's intentional or reckless depletion of his or her net family property;

e) the fact that the amount a spouse would otherwise received under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

g) a written agreement between the spouses that is not a domestic contract; or

h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.

(taken from Section 5.(6) Family Law Act)

46. Order Restraining Harassment - (1) On application, a Court may make an interim or final order restraining the Applicant's spouse, same-sex partner or former spouse or same-sex partner from molesting, annoying or harassing the Applicant or children in the Applicant's lawful custody, or from communicating with the Applicant or children, except as the order provides, and may require the Applicant's spouse, same-sex partner or former spouse or same-sex partner to enter into the recognizance that the Court considers appropriate.

(2) Offence - a person who contravenes a restraining order is guilty of an offence and upon conviction is liable,

(a) in the case of a first offence, to a find of not more than $5,000.00 or to imprisonment for a term of not more than three months, or to both, and

(b) in the case of a second or subsequent offence, to a find of not more than $10,000.00 or to imprisonment for a term of not more than two years, or to both.

(3) Arrest Without Warrant - A police officer may arrest without warrant a person the police officer believes on reasonable and probably grounds to have contravened a restraining order.

Sections 24(3)(4) and (5) read as follows:

24.(3) Order for Exclusive Possession: Criteria - In determining whether to make an order for exclusive possession, the Court shall consider,

(a) the best interest of the children affected;

(b) any existing orders under Part I (Family Property) and any existing support orders;

(c) the financial position of both spouses;

(d) any written agreement between the parties;

(e) the availability of other suitable and affordable accommodation; and

(f) any violence committed by a spouse against the other spouse or the children.

(4) Best Interest of Child - In determining the best interest of a child, the Court shall consider,

(a) the possible disruptive effects on the child or a move to other accommodation; and

(b) the child's views and preferences, if they can reasonably be ascertained.

(5) Offence - A person who contravenes an order for exclusive possession is guilty of an offence and upon conviction is liable,

(a) in the case of a first offence, to a find of not more than $5,000.00 or to imprisonment for a term of not more than three months, or to both; and

(b) in the case of a second or subsequent offence, to a fine of not more than $10,000.00 or to imprisonment for a term of not more than two years, or to both.

Temporary orders for exclusive possession are made to prevent harm to a spouse or to children where there has been extreme tension or violence in the home. Exclusive possession will be more readily made where one spouse has already left the home and is residing elsewhere.

Longer term exclusive possession orders are made in situations where children or a spouse would suffer unnecessarily from a forced sale of the home in order to equalize property.

Generally speaking a spouse given an order for exclusive possession of a matrimonial home will be expected to bear the expenses of the home during the period of exclusive possession.