Details on the Divorce Act and a Matrimonial Home Dispute
On March 1, 2021, particular Divorce Act amendments came into action, one of which is the new section 7.3. This states that “to the extent that it is appropriate to do so, the parties to a proceeding shall try to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process”. In other words, now there is a duty on the parties of a case to handle their disputes through a dispute resolution process initially before going to the courts. This is where collaborative family law enters the picture.
Collaborative family law
Collaborative family law is an alternative dispute resolution process, where each party is represented by a lawyer who has special training in more of an “interest-based” approach. The process is better suited for cases in which a power imbalance exists between the parties. Since lawyers are involved in this process, the power levels become more balanced because each lawyer is present to support their client during the negotiations.
Thus, we may see more and more clients and lawyers favouring the collaborative family law process first rather than immediately attending the courts.
On the other hand, upon separation, an important question can be the following: what if one spouse wishes to sell the matrimonial home and the other does not? The court in Ivancevic-Berisa v. Berisa dealt with this precise issue. The couple entered into a separation agreement and both agreed that the matrimonial home would be sold. The husband was permitted to reside in the matrimonial home until a sale was reached. However, the husband ended up refusing to sell the home. He expressed that he would prefer to buy out the wife’s share of the home. He even threatened to destroy renovations that were made. The wife brought a motion for an order dispensing with the husband’s consent to conduct all of the necessary steps in order to sell the home.
In the end, the court granted the wife’s motion based on the separation agreement between the couple, which indicated that both parties agreed to sell the home. Furthermore, the court found that under the Family Law Act, the wife can proceed with the sale of the matrimonial home due to the husband’s unreasonable withholding of his consent and interfering with her efforts to sell the property.
Lastly, this case highlights the importance of drafting a well-thought-out separation agreement!
Looking for a divorce lawyer in Toronto? Contact Melekhovets Law for all matters related to family law.