The Common Law Reconciliation Rule – An Ancient Relic?

The Common Law Reconciliation Rule – An Ancient Relic?
Date: 06 Aug, 2021

By: Rebecca Rosenberg

An established common law principle (law made by judges) dictates that a separation agreement (a legal contract outlining how a couple will settle issues around their separation) becomes void if the parties reconcile. The idea behind this rule is that it doesn’t make sense to enforce an agreement if the very basis of it – a couple separating from each other – is no longer true.

At issue in Krebs v. Cote, 2021 ONCA 467 is whether this rule should be applied to cohabitation agreements – agreements between couples that allow them to share rights in each other’s property. The parties in Krebs started an on-again, off-again relationship in 2006. In late 2012 or early 2013, the two entered into a cohabitation agreement, subsequently marrying in 2014. The pair finally broke off their relationship in 2019 at which time the respondent sought to invalidate the agreement on the grounds that their 2014 reconciliation broke their contract.

The Ontario Court of Appeal (ONCA) decided that the common law rule does not apply to cohabitation agreements, meaning a reconciliation does not automatically disturb a legal contract.

In her reasoning, the Hon. Gladys I. Pardu wrote about the outdated beliefs that form the foundation of the common law principle. Pardu described the rule as “ancient” and reminiscent of times when living together while unmarried was considered a sin. Since modern marriage contracts are more complicated, Pardu emphasized that people should be encouraged to create agreements that outline their rights and obligations to their significant others.

However, the court did not go so far as to say that judges should always back a cohabitation agreement. Instead, courts must look to the parties’ intentions at the time they agreed to the contract, noting the surrounding circumstances of that particular partnership.

So, when deciding to share your property with someone else, remember to be clear about the terms you are agreeing to. Expressly stating your intentions in these types of familial contracts can help you avoid going to court in the future.

Upcoming Changes to the Divorce Act Regarding Custody and Access

Date: 19 Mar, 2021

On March 1, 2021, significant changes to the Divorce Act are finally coming into force after the government deferred the coming into force date. One of the main goals of these legislative changes relates to the best interests of children and promoting the same.  The best interests of the child is the only consideration for parenting decisions under the Divorce Act. Various changes to the Divorce Act ensure that this principle is the key focus. There is a non exhaustive list of the best interests of the child criteria. A “primary consideration” specifies that a child’s safety, security, and well being are the most important factors for a court to consider. One of the best interests of the child criteria will require the court to consider the willingness of the person seeking custody to facilitate contact with the other parent. Family lawyers are all too familiar with the difficulty parents face in encouraging the child to have a relationship with the other following a separation. Decisions about parenting time are subject to the child’s best interests. Another change relates to the definition of family violence which will include direct or indirect exposure to violent, threatening, coercive and controlling behaviour when children are concerned. The court will consider family violence and its impact on the ability and willingness of any person engaged in violence to care for and meet the child’s needs.

One of the most significant changes relates to the removal of the terms “custody” and “access”. The new language focuses on a parent’s responsibilities for their children. “Parenting Orders” will focus on “parenting time” and “decision-making responsibility”. The goal of these changes is to reduce “winners” and “losers” in family law as it relates to children.

Additional changes to the Divorce Act include a framework for changes of residence and relocation of children, an area that faced criticism over the years.

It has been several years since significant changes have been implemented in family law. The amendments to the Divorce Act seek to shift the way that parents, lawyers, and judges deal with claims regarding children under this statute. It will be interesting to see in the coming years if such legislative amendments are successful in accomplishing this shift.

For more information on these changes, please refer to the Legislative Background and Changes to the Divorce Act published by the Department of Justice.