By Douglas J. Manning, Partner, Certified Specialist in Family Law

Yes!  But why would you want to?

In a recent British Columbia court decision, one of the issues was whether the husband and the wife had entered into an oral marriage contract that excluded the sharing of the wife’s rental property from being shared in the parties division of property when they separated.

Both parties had come from previous marriage-like relationships. The wife owned 2 properties coming into this marriage.  The value of one of the properties increased by about $500,000 during the 3 year marriage.  The parties never occupied the property during the marriage and they never shared the rental income. The husband never paid any of the expenses associated with the property.

The wife’s evidence was that the parties had a verbal contract that the husband would not have any interest in the property, nor would the value of the property or any increase in the value be included in what the wife would have to account for in the sharing of the parties’ net worth.

The husband maintained that they had talked about putting his name on title to the property and therefore he would have been a joint owner and thus the intention was to share the asset and the increase in the value over the marriage should be included in the mix of the property to be shared.

The wife gave evidence that each party agreed to be responsible for their own expenses and pay their own debts and not look to the other for assistance.  The evidence showed that they more or less were responsible for their own individual expenses, never had a joint bank account and each was financially responsible for their own children from their prior relationships. However, the parties did share their living expenses together, including the costs of vacations, etc..

The issue was largely one of credibility. Who did the judge believe?  On balance the court preferred the wife’s evidence as it was more consistent with how the parties conducted themselves.  They had very little integration of their financial matters and this supported the wife’s contention that there was no mutual intention to share the value of her pre-marriage rental property or the increase in its value.

Of course all of this could have been avoided had the parties decided to have a written marriage contract that clearly set out their expectations, rights and obligations.  If you are going into a new relationship and have considerable assets or there is a significant difference in your incomes, it would be wise to consider the use of a cohabitation agreement or marriage contract.

Thomas Dart, Partner.

Around the world, in so many countries, we are witnessing the conflict which is created by the political party system.  We pride ourselves on our democracy. Yet, many of us feel it is not working. No party seems to be able to fix the many problems currently facing us. Poverty, climate change, gross income inequality, all are dealt with differently by each political party.  Some parties recognize it and propose solutions. Other parties ignore, don’t understand, or are ignorant about the problems.  One party pits itself against the other in an adversarial bombastic battle in which, now, all rules of normal civility are tossed in the dirt. Leaders distort reality in order to win power. Each party ruthlessly attacks the other’s leaders and party members as if their opponents were the epitome of evil. The “Leaders” unfortunately provide an example which many in society begin to follow. Whether it be England leaving the European Union, or the US electing a President more than half the people of their country did not want, the adversarial nature of party politics is not making the world a better, safer, place.  It creates “winners” and “losers” – more division.  It does not make society whole.

In families, when conflict erupts, the same type of “political system”, on a microcosmic scale, also can kick in. Conflicts over finances, communication, children, intimacy – all tend to become ‘adversarial’. One “party”, in an effort to persuade or take control, begins to demean the other – “you always do that – you never do this!”  The defensive party then, for protection, attacks back – “you never do this and you always do that!”  The conflict escalates. If it goes on long enough, the “parties” may find themselves at war in the adversarial system we call the Family Court. 

What if there were no political parties? What if we were able to elect our own chosen representatives to actually represent us and not their chosen political party? What if that representative could actually represent the interests and goals of our own community, without having to tow the party line? What if all the representatives of all our communities had to get together and figure out a way to address the interests and goals of all the communities: our city, our town, our province or our country? What if rules were set up which prohibited engagement in an adversarial battle and required the representatives to actually work together to understand and give priority to the interests of each community? They might actually find that there are common interests and common goals in each community which can be appropriately addressed without someone winning and someone losing.

What if, in our families, when conflict arose, instead of becoming adversarial, we asked why? Why are you so upset? What if we kept probing to find the source of the conflict – its root cause? When we see our partner verbally attacking us, instead of assuming we are the actual focus of the attack, we might find, if we ask, that the real focus is their own fear – fear of appearing inadequate, or perhaps of losing their job, or perhaps of being unloved. We might then respond very differently, once we understood.  How many times have you started an argument only to find at the end, that there was far more to the conflict than, for example, just not doing your chores around the house? Were you able to get to the bottom of the conflict? If you were, you probably ended up, once the conflict was behind you, in a loving embrace, with true understanding and true forgiveness cementing your relationship once again. You also probably learned something about each other from the conflict and you probably learned that your decision to try and find the root of the conflict made you both better people, because you were able to gain greater understanding, greater empathy.

The governing of our nation and the governing of our family relationships should not be adversarial sports – can we find a way to eliminate this growing and rather frightening trend from our governments and from our families? 

By Douglas J. Manning, Partner, Certified Specialist in Family Law

The Chicago Cubs have not won a World Series since 1908 and have not appeared in a World Series since 1945 (when they lost to the Detroit Tigers)

But now, with the Cubs in the World Series, tickets to the 3 games in Chicago are the hottest commodity available.  I heard the average re-sale ticket price was over $3,000 for a single seat!

As you can imagine with a very limited time supply and a huge demand, people were going nuts to try and get a ticket.  I don’t think even President Obama could get a ticket and he is from Chicago!

And now for the “interesting” family law questions about those season tickets.

So with a married couple in Chicago separating and both spouses being huge Cubs fans there was the inevitable debate over who is getting the tickets to the one game they had tickets for?

The wife filed an emergency petition seeking to get the tickets.

The husband was able to get the tickets because he had purchased a ticket package deal for the season with some friends before the separation.

In this case the judge ruled that the husband gets to keep these tickets so long as he took their 12 year old son to the game and the husband was ordered to purchase a ticket for the wife in a comparable seating area.  With tickets going for around $3,000 on StubHub that will be a very expensive game for this couple to attend.

In trying to convince the judge that this was an “emergency” that required immediate court intervention, the wife argued that it would be extremely unlikely that the Cubs will reach the World Series again in her lifetime given that they haven’t been in the Series in 71 years.  The husband’s lawyer relied on the old adage  “Hope Springs Eternal” to argue that there is a greater likelihood that the Cubbies will be back sooner rather than later.

David Harris-Lowe, partner, Family Law

Wrong.  When it comes to property division upon a separation or death, and in other areas of the law, there is a significant difference between a married and common law couple.  Married spouses have pre-determined rights to share in the increase in property value earned during the marriage and pre-determined rights to receive benefits from their deceased spouses estate.

While common law spouses may have property rights after separation or a death of their spouse, determining those rights is not always clear.  Common law spouses do not automatically have an interest in their home or the other spouse’s investments on separation.  They have no guaranteed right to inherit from their deceased spouse’s estate.

The fact is, in many ways, the law hasn’t caught up with the realities of the way people form relationships.

If you are in a common law relationship you can protect yourself by reviewing (or getting) your will and estate plan with a lawyer.  You should consider a cohabitation agreement or a ‘prenup’.  If you have separated or your spouse has passed away, and you haven’t been treated fairly with regard to the sharing of assets, then you should also meet with a competent lawyer to find out what your rights are and whether there is a remedy for you.

Thomas Dart, Partner, Family Law

We have all experienced the breakdown of a relationship whether it is our own or whether it is the relationship of people we know and love. The traditional way of handling the breakdown is to have each party go to a lawyer, obtain legal advice about their rights and obligations and then have the lawyers try to negotiate an agreement. If an agreement cannot be reached, one of the parties begins a court application and then “the fight” really begins – and the expenses rise. The already bad relationship only gets worse. Children are directly affected by the conflict. Everyone loses – even the lawyers because they can’t get paid for all the time required to solve the problems in the court system and the court system itself because it can’t manage all the cases that pour through the doors.

The parties to the court proceeding are really handing over the power of solving their problems to professionals: to their respective lawyers, and to the judge who ultimately must decide their future for them. Is there a way to help people solve their own problems and reduce the animosity and harm which the adversarial nature of the court proceedings create? Fortunately, yes there is.

A competent and certified family mediator who knows the law and, more importantly, the impact of separation on children can aid separating parties in many ways. The mediator can provide all the information the parties need to make informed decisions which will impact them for the rest of their lives. The mediator can assist them in opening up discussion around the problems they are facing so that they can seek and find mutually acceptable solutions. The mediator can also help by obtaining any necessary therapists, coaches, valuation experts and any other expert who might assist them in reaching an agreement.  If the mediator successfully assists the parties in reaching an agreement, the mediator will prepare a memorandum of the agreement. The mediator cannot draft the actual legal agreement which the parties must sign to complete the process. The mediator must refer them to independent legal counsel who will prepare their actual legal agreement for them. This is to make sure that the parties obtain appropriate legal advice before signing the agreement so that they can be assured that they have made the right decisions. This provides a safeguard for anything that might have been overlooked in the mediation. If the lawyers come up with a reason why the agreement reached in mediation should not be completed, the parties can then return to the mediator with their lawyers to work out another solution.

In other words, the parties themselves can take control and through the mediation process can learn all they need to know to make well-informed and good decisions which are mutually beneficial and protect the children from any conflict. In the mediation process, the parties do all the work under the direction of the mediator. With all the work completed under proper supervision, the lawyer’s job in drafting the agreement then becomes much easier and therefore much less expensive. Parties who can mediate a settlement pay much less then parties who turn over the decision-making power to others.

Mediation may not work if one of the parties suffers from a mental health problem or if there is serious domestic violence but it can work for the vast majority of people who separate. Anyone who wants to learn more about mediation and other ways of resolving problems arising from separation should visit the following websites: or

Barriston also offers mediation in the form of Barriston Resolution Services. Take a look at our website for more information.


By Douglas J. Manning, Partner, Certified Specialist in Family Law

Yes!  But why would you want to?

While not exactly bigamy, it is possible to have more than one spouse at the same time.  If you are separated from your spouse to whom you are still married, you are still legal spouses in the eyes of the law. This has several consequences:

  1. You are not free to re-marry;
  2. In the event of your death, your separated spouse will be entitled to widow/widower survivor benefits within the Canada Pension Plan;
  3. If you have not changed your Will, then your spouse may still be entitled to receive whatever you left them in your Will even though you are separated.

You could also have a “common law” spouse at the same time as having a married spouse.  If you have cohabited continuously for at least 3 years with another person (of the opposite or same sex) then this person could be your spouse as well!

So what?

Well, in the event of a separation after 3 years of cohabitation, you could have a spousal support obligation to this person, as well as having a spousal support obligation to your married spouse. Isn’t that a kicker!

Also, having 2 spouses at the same time could create complications for your extended health insurer.  The vast majority of employee health insurance plans provide prescription, dental, eyeglass coverage to the employee and to their “spouse”.  But most plans will not cover 2 spouses at the same time.  This could increase the cost to the insurer significantly so most insurers limit eligibility to one spouse at a time please.

Also, having more than one spouse at the same time could create confusion for life insurance companies.  If a separated but still legally married spouse has a life insurance policy on their life that they are required to maintain because they have a support obligation to their married spouse and/or children of the marriage and at the same time the insured has a common law spouse with whom they have had children and the insured dies, then there is the very real possibility that you will have 2 surviving spouses fighting over the insurance proceeds.  The insurance company won’t know who to pay the policy proceeds to.  Undoubtedly this type of situation will end up in litigation with the money being tied up for years.

So, if you are considering diving into the pool of committed relationships after coming out of a separation in which not all of the loose ends have been tied up, you would be well-advised to get some legal advice first.  Love may be blind, but as we all know – it ain’t cheap!

Barrie Hayes, Partner, Family Law

The Family Law Act provides a statutory framework for the equalization of family property upon separation. The framework essentially exits out from the equalization the value of property the spouses owned on the date of marriage, and any property the spouses received from third parties; inheritances, life insurance policies, and certain civil judgments during the marriage.

The spouses deduct, from the value of their respective family assets at date of separation, any outstanding debt which then produces the spouses’ respective net family properties. In the event that one spouse has  net family property which is greater than the other spouse’s net family property, the spouse with the higher net family property owes a monetary payment to the other spouse equal to one half of the difference in the two net family properties.

This statutory framework provides a fairly focused, straightforward system for settling property issues between separating spouses.

Unfortunately the legislation only applies to legally married spouses. Common-law spouses have no recognition under the Family Law Act for property equalization.

Common-law spouses, in pursuing property issues arising from separation, have to resort to the common-law principle of unjust enrichment. Unjust enrichment will provide monetary relief to a common-law spouse if the common-law spouse can demonstrate that, through either financial or labour contributions made by the spouse, the other spouse was enriched by such contributions. The spouse pursuing unjust enrichment also has also to demonstrate that he/she suffered a deprivation by virtue of the contributions, and further that there was no legal reason justifying the contributions to the other spouse.

Cases dealing with unjust enrichment have increasingly recognized the claim and have broadened its application to common-law spouses.

The Supreme Court of Canada has recently advanced the unjust enrichment principle in creating the concept of a joint family venture in common law relationships. If a common-law relationship is determined to be a joint family venture, the law of unjust enrichment will compensate the contributing common-law spouse for the difference in the increase in assets between the two common-law spouses from the date of commencement of cohabitation until the date of separation.

Although the unjust enrichment principle greatly assists in providing fairness in dealing with property issues between separating common-law spouses, it lacks the precision and certainty provided by the Family Law Act to legal married spouses.

Other provinces in Canada have passed legislation which gives common-law spouses the same statutory property equalization rights as legal married spouses. Hopefully, over time, Ontario common-law spouses will be afforded the same statutory property entitlement.

Catherine Hyde, Paralegal

It’s tax time and hopefully you have filed your tax return.  You obtained copies of your T4s, T5s, receipts for medical or children’s expenses, business or rental income information. You provided these to your accountant or perhaps prepared your own tax return, and once done, received the Notice of Assessment confirming that you did your taxes correctly. 

 Preparing your taxes and preparing a financial statement in a separation case are similar.  In both instances you must gather together your supporting documents to prove any credits or deductions that you are entitled to within specific timelines. An effective and cost saving measure is to create a filing system.  This is not a doomsday philosophy in the event you do separate later, but rather it is simply a good practice, to assist in preparing your taxes, and to assist in any future needs you may have whether separation or estate planning.

You have essentially two options.  Firstly, you can obtain the standard filing cabinet, create paper files for each category including income, bank statements, credit card statements, investment statements, wills, property purchase and sale records, details of inheritances. Alternatively, in this digital age, you can set up an on-line filing cabinet with the same ability to set up folders for each of the categories and scanning the physical documents to each of the digital folders. These records should be maintained on a monthly basis.

 A little time now on filing can save you a world of time later.  Happy filing!

David Harris-Lowe, Partner, Family Law

36 days in trial after two years in the court system.  $500,000.00 in legal fees, with one party owing the other almost $200,000.00 as part of those legal costs.  This was only part of the fallout recently after two parents were unable to agree to a custody and access arrangement relating to their seven year old daughter.  This case attracted significant media attention not just because of the large sums of time and money expended, but also because of the harm that can be caused to children from marriage breakdown.

The parties’ daughter was anxious and agitated because she was worried about one of her parents getting mad because her tooth fell out while seeing the other parent.  Their daughter was told bad things will happen when she’s visiting the other parent or that the other parent didn’t love her.  The judge wrote – “What will it take to convince angry parents that nasty and aggressive litigation never turns out well?”  He also said that “no matter how hard we try, we don’t seem to be getting the message out to separating parents”:

a)   Nasty doesn’t work.

b)   Withholding the child doesn’t work.

c)    Sarcastic emails don’t work.

d)   Bad-mouthing the other parent doesn’t work.

e)   Twisting the child’s life to create a new status quo doesn’t work.

f)    Selfish decisions which may be emotionally satisfying in the short term, never look good in        a courtroom.

Cases like this should cause participants in the family law justice system to pause and reflect on how we approach these types of cases.  However, my experience is that the reality is most lawyers actually do encourage reasonableness and settlement. 

If you are, or feel you are about to go down the road to a ‘high conflict’ separation then the following are useful suggestions:

a) Get help.  Retain a lawyer.  See a counsellor.  Bounce ideas off a friend who is prepared to        tell you you’re taking the wrong approach.

b)    Don’t have parental discussions in front of the children.

c)    If you can’t have a discussion with the other parent without arguments and put downs,              then establish a process so that you can have discussions in a way that avoids this.

d)    Just because the other parent says mean or hurtful things, doesn’t mean you have to                  respond in kind. 

e)    Ask yourself, what would a judge think about my communication and actions?

f)     Take care of yourself.

Hiring good professionals in high conflict cases is important.  They will be honest with you in giving advice, even if you don’t always want to hear their advice.  A good lawyer can guide you through the system and, if needed, advocate for you in an effective and efficient way.

Hilary Goodman, Associate, Family Law.

Professionals, including lawyers, usually choose their profession with a goal in mind. Some want to serve others, some want to make lots of money, some just love the profession and want to join it. Once a profession calls you to it, it can become an obsession.

Law, like many professions, is not easy. It takes a lot of schooling (and corresponding student debt), to obtain the required qualifications. Then it takes a period of internship (in law called ‘articling’). Then finally you can call yourself a lawyer, some 7 years after graduating high school. Then the real work begins: hours of client work, analyzing and problem solving. Many lawyers find themselves working 50 to 60 hours per week all year round. The managing partner of the law firm has to often remind them to record their time as many forget so often to do just that.

Many lawyers though, still have time to devote to their other passions in life – like the opera or hockey – or both even !

The hockey player in me loves the sport so much that I would play it year ‘round if I could. Our firm has a ball hockey team so I am able to play that for a great part of the year. Our team sometimes struggles to win. Being competitive in nature, ball hockey has taught me that I have to learn the art of patience, forgetting the loss and moving on to the next game. The friendship and camaraderie of the team environment is very close to the office environment in which I work day in and day out. But it is entirely different as well – as our focus is on the game and the bounce of the ball – sometimes lucky, sometimes not so lucky.

Opera is also a secret passion of mine. There is nothing like the aria and the performance of those who devote their lives to this wonderful art. It also gives me the chance to get lost in a beautiful story, whether tragic or otherwise – in the timelessness of the plot, which gets re-performed by so many different players, yet remains firm in its message of humanity.

As much as I love working in the family law environment at Barriston, I also know that I need these outside activities to maintain balance and perspective. As Stephen Covey says, “we have to sharpen the saw” by taking time out, by seeing the world outside the practice of law and becoming part of the wonderful world of arts and sports helps me do that. So if you see me in my hockey uniform, please remember that I also am part of a wonderful profession, one which I believe is devoted to serving the public by protecting and advocating for those who need the help.