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Law Times • February 2, 2009 FOCUS PAGE 13 Ontario government are a big step in the right direction say those working in the field — but more still needs to be done. "The one thing that jumps out Reform still falls short in some areas, say critics T BY IAN HARVEY For Law Times he proposed changes to the Family Law Act tabled in Bill 133 by the which 133 hasn't gone far enough is on the front of domestic vio- lence," says Conservative attor- ney general critic MPP Christine Elliott (Whitby-Oshawa). "We had introduced a private mem- bers bill that went to committee to allow emergence intervention last spring. While it's good that the law is being amended to al- low common-law spouses access to restraining orders quickly it should be more proactive overall. There were something like 27 or 28 women murdered as the result of domestic violence last year. So more work really needs to be done on this front." Others were lavish in their praise but noted some curiously missing changes, which are con- sidered long overdue. "I applaud everything — the pension is huge — and it's a ter- rific package which dealt with a lot of issues people wanted, mak- ing it easier and cheaper for peo- ple, which is fabulous, the biggest thing conspicuous by its absence is a lack of enforcement around access," says Joel Miller, chair- man of the family law practice at Ricketts Harris LLP. "It's difficult politically and I understand that but if you can make these other changes around restraining or- ders, disclosure, and pensions, then this is also overdue." While the courts are clearly sending a strong message that those parents who manipulate their children and alienate the other parent risk losing custody, most average wage earners don't have the funds to mount a court battle, he says. "And most family lawyers don't want to go to trial." He said when the Family Re- sponsibility Office was first cre- ated it was under the Support Orders Enforcement Act and the other leg of that has fallen by the wayside leaving mostly fathers frustrated when the mother de- nied access as part of a strategy to demand more money, increase litigation costs, or in some cases "through sheer spite." "Certainly the pension re- forms are flexible and will help a lot in deciding equalization pay- ments," Miller says. Miller, who also sits as an adjudicator with the FRO, says a quick fix process which is be- ing introduced for income dis- closure for support calculation and update should not just be one way. "In other words if the income is going up, the process allows very quickly for more money to be paid in support," he says. "But if the payor loses their job and their home they have to make an application to the court to have the support varied." While the Ontario Bar Asso- ciation has praised amendments proposed for pension valuations and the extension of a fast-track access to restraining orders to Childview_LT_Feb2_09.indd 1 www.lawtimesnews.com 1/27/09 4:11:05 PM common-law spouses that mar- ried spouses currently have ac- cess to, there are still concerns around issues like creating more unified courts and giving the family courts more resources. Alfred Mamo of Mamo and Associates in London, and au- thor of a report Recapturing and Renewing the Vision of the Family Court along with Peter Jaffe and Debbie Chiodo for the province, says the package over- all is an important first step. "It deals with the more urgent issues," says Mamo, whose report made 121 recommendations to move family courts away from lit- igation to negotiated settlements by tweaking rules and imposing directives by way of regulations. "It's also starting to point towards treating litigation involving chil- dren differently than we do other litigation. It's becoming more di- rective, in that the rules dictate what information must go to the courts rather than leave it up to the litigants, and that's impor- tant because so many are repre- senting themselves. That results in some frustrations because all the information to make a deci- sion in the best interests of the child is not there." The direction on disclosure for support calculation will also speed up the process and ensure fairness because as it stands, it's treated as voluntary. With the direction spelled out, he says, the reform process can start to look at other areas of the courts to speed up, simplify, and add more resources for self-rep- resented litigants, like the family law resource centre, in order to get back to the premise of accessible and affordable justice for all. Also conspicuous by its ab- sence is any effort to address the issue of the matrimonial home valuation in the case of spouses who remarry and bring their home into the marriage. As it stands now in the event of a break up the incoming spouse is entitled to half the value of the matrimonial home, which means the homeowning spouse is at a clear disadvantage because they stand to lose a chunk of their eq- uity which their new partner did not contribute to. "The rumour is that it was a drafting error in the original leg- islation," says family law lawyer Andrew Feldstein. Perversely, those who have a windfall such as a lottery win or inheritance can protect that money from equalization in the event of a break up, he says. But as Miller points out, those who do the smart thing and pay down their mortgages will lose that protection. "Better to put the money in the bank and borrow against it to pay down the mortgage," he says. "But it should not have to depend on having a clever lawyer to come up with this advice." A marriage contract can head off many of the issues, but Feld- stein also urges caution noting case law, which holds if the statement of worth at the time of the contract misrepresents true worth or is inaccurate, it can void the contract and re- move all the protection the spouse was trying to seek. Finally the package of re- forms does not address com- mon-law property rights, though it does put common- law spouses on an even footing with married spouses in terms of access to restraining orders. As it stands, common-law spouses still have no inherent property rights, though the courts seem to be more innovative in armer_LT_Feb2_09.indd 1 It's part of a bigger question, if you give common-law property rights then what differentiates common law from marriage, and do you really want to go there politically? trying to ensure a common-law spouse does not leave a long- term relationship completely empty handed. And that's because it opens up a Pandora's box of hot po- litical issues that would dwarf the same-sex marriage rights debate. Indeed, a case involv- ing common-law spousal rights currently in Quebec's courts is drawing more attention to the issue, though that province has long seen common-law relation- ships in a different light because, with the collapse of the Catholic church, those relationships are favoured over marriages by the majority of couples. "It's part of a bigger question, if you give common-law proper- ty rights then what differentiates common law from marriage, and do you really want to go there politically," says Feldstein. "Why get married then?" LT MARMER PENNER INC. 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