Children’s Interests being a Major Consideration in
Resolution of Family Law and the Home
By Mr. Haig DeRusha, Family Law Specialist as certified by Law Society of Ontario, and Certified Family Law Mediator, as certified by Family Dispute Resolution Institute of Ontario
Originally printed in Peel Briefs, a lawyer newsletter from Peel Law Association
In the fall issue of Peel Briefs, our local lawyer, Mr. Gerard J. Michaud, wrote a response to an article published in the previous Peel Briefs. He wrote about “The Children in Our System” as one of his headings, and identified problems with the system which he described in greater detail, but I will paraphrase as follows:
A historical focus on litigation rather than negotiation and mediation to resolve disputes.
A lack of access to lawyers who can manage clients’ expectations, and educate them about resolving disputes without conflict.
A lack of family law dispute resources which could focus on resolving disputes by agreement rather than imposing decisions.
Looking at the Breakup from Children’s Point of View
Once a child enters kindergarten or is older, they have their own life, both social and practical. They have their own bedroom, friends and school. If the child could keep their own room and living arrangements, could keep their school system in place, and their friends and backyard or nearby parks available to them, they would most likely have a lot less difficulty in dealing with the breakup of their parents.
Thus there is a major question of division of the matrimonial home. Although our Family Law Act can grant “exclusive possession,” if and only if the parties are married (unmarried spouses have no common law or statutory right to occupy their partner’s property) this is not actually implemented very often. This is because, as Alfred A. Mamo says in Annual Review a Family Law 2018 – 2019, “An order for interim exclusive possession should not be given lightly when it will have the effect of forcing one spouse out of the home.” (page 1026)
A court has the authority, pursuant to the Family Law Act to deal with the issues relating to the sale (including pretrial sale), and carrying charges of a matrimonial home, or to order partition and sale of co-owned property when the parties cannot agree on the value of distribution of the property. It is very rare that the postponement of the sale of the matrimonial home for the benefit of the children is extended beyond the court concluded proceeding.
Thus the benefits of alternative dispute resolution, negotiation and mediation allows for many alternatives to be selected that could leave the children in a house for an extended period of time. But this requires application of these concepts between the parties: consideration (looking at the situation from a business/financial review); compassion (looking at the emotional effect on the other party and children); and compromise (the willingness not to demand what one first concludes they might want, but looking at the situation in open-minded, practical way).
If consideration, compassion and compromise are attitudes put into effect when looking at the separation from the child’s point of view, and looking at the benefit to children of being able to stay in their same residence, there are many options that the parties could put in place. Some of these may include the following:
Instead of selling the house at that time, the parties could allow one party to maintain the residence with the children, and when it comes to equalization or a payment to the non-residing parent, the following process could be put into effect:
agreeing that both parties will maintain the house (mortgage payments and major repairs) and that the house be put on the market at a future date (perhaps 2 years, or longer such as 10 years), or if certain circumstances occur, such as the parent residing in the house brings in a new partner, wishes to sell a house, or dies, then the house must be sold unless the non-residing parent agrees otherwise, within six months (or such other time frame) from the date of the triggering event, but perhaps with a proviso that at the option of the residing parent, the interests of the non-residing parent can be bought out at any time according to a formula which recognizes the non-residing parent’s respective financial interest in the property.
There are many variables to this concept, but the general idea would be to allow the children to continue to reside at the place where they are most familiar, in the location where they are most familiar, and at predictable and manageable costs for the parties, while at the same time, securing the non-residing party’s financial interests (this could be done by agreeing that the net equity of the sale the house would be divided at a certain ratio, or fixing the amount of funds that should be paid for the non-residing parent’s interest in the house, and then perhaps setting out some formula to recognize the increase in value, or that there should be interest paid (in addition to the basic amount) when the payment is made to the non-residing party).
If both parents are looking at all of the different compromises that could be realistically and fairly set out for them, the house can be often maintained.
The continued maintenance of the house allows many options, including if one parent is going away on vacation for example for a couple of weeks, the other parent could come and reside in the house with the children.
The approach of continued maintenance of the house also allows for what occurs in some cases, that is that the parties reconcile.
The approach of continued maintenance also avoids the financial consequences of real estate commissions and other costs that occur when the house is sold.
Getting to Compromise
The mediation process is designed to encourage parties to compromise. Trained lawyer-mediators are familiar with the law and process that would otherwise apply if the parties proceed through court and have a court decide what happens with the home. Lawyer/Mediators are also able to assist the parties (and their lawyers) in the drafting of a formula which will look after the interests of both parties.
Mediators are trained to make sure that power imbalances, or past interactions between the parties, do not prejudice a party in the mediation process.
By agreement, however, parties may come to a resolution that would be very different than that which a court would have jurisdiction to impose. Thus family law lawyers should thoroughly canvass mediation as efficient (timely), effective (enforceable agreement), and less expensive (no full expert financial opinions required, as parties may come to reasonable agreements; and no motion/trial process required).
Children are often the genuine most pressing concern for each of the parents, and through the use of mediation and compromise, the interests of the children, and the parent’s relationship with the children and with each other may be best protected.
If one is seeking senior family law lawyers as potential mediators, they can be found at Family Mediation Works.