I started watching One Tree Hill for the first time ever. I know, I know, I am a fake millennial. Anyways. I started season two yesterday and I like it quite a bit actually. All the characters annoy me, it is set in a fictional small town (if it is a real town, I sincerely apologize to the Tree Hillians) where everyone knows everyone and everyone sorts of dates everyone. It is the perfect early 2000s show. Anyways, if you do not know the show, it’s about this high school kid, Luke Scott. His mother got pregnant in high school and was abandoned by the father of the child. Now the father (Dan) has another family with another son who is a few months younger than Luke and everybody thought that it would just be a swell idea for them to all live in the same town.Dan is the dictionary definition of a deadbeat but he is also somehow worse? He knows of Luke’s existence but basically just denies him and rubs it in his face that he is denying him. No deadbeat has ever deadbeated the way that Dan does. On the flip side, he focuses on his other son (Nathan) and is very present in his life but shocker but he is a terrible father to Nathan too. He also does this thing where he fosters animosity between the boys but I am told that at some point, the boys do become friends. It should not really be surprising that he is a terrible partner too. His wife Deb has had enough and decided to leave him. So, as we do, let us examine what would have happened if Tree Hill, whether real or fake, was a small town in Ontario, shall we?
Dan is a terrible partner to Deb. Period. He is mean. He is dismissive. He is vindictive. Unfortunately, none of this matters regarding a divorce. Ontario is a no-fault jurisdiction. They just need to have been separated for a year and they can get their divorce. Cheating and cruelty are also other reasons for divorce to be granted but Dan was never actually unfaithful. He towed the line very carefully. Deb on the other hand did apparently have a bit of a fling at some point, so this could be the basis of the divorce. Either way, the divorce will be granted.
As we have now seen, Dan is insufferable so at some point, surprise surprise, Deb kicks him out of the house. Now I know people do this all the time but there could be unintended consequences. There is something called occupation rent. What this means is that like a landlord, Dan could ask Deb to pay him rent seeing as she has been residing in the home for this whole time and he has not. The amount would be the fair market value of rent divided by two. This is some possible exposure for Deb.
Honestly, I struggle to see an entitlement here. Both of them left school when Deb got pregnant. Both of them worked. Both of them cared for Nathan. Deb worked for a non-profit but was apparently richer than Dan? Hey, movie magic huh. No one really subdued their career for the other. At certain points, both parties were the primary caregiver. The parties also seem to make similar amounts so even if entitlement can be made out, the amount would be $0.
Nathan. Interesting kid and a ball of contradictions. But to be fair, I mean, he is a kid with a father like Dan Scott. Considering everything, I think he actually turned out okay. Now, when his parents told him they were getting divorced, he wanted to stay with Deb but then Dan told them that if he didn’t get custody, he would tell everyone Deb’s secret. Deb’s secret was that she had an affair years back. So, Nathan is stuck between a rock and a hard place. He does not want to stay with Dad but feels the need to protect Mom’s secret even though he did not know what it was. Nathan finds out what this secret is and is PISSED. So, he gets emancipated. Dad is obviously awful but he feels abandoned by Mom because when she had her affair, Dad was extra mean to him and he emailed and called but she never came back.
Now, emancipation (in this context) is the legal process of a child that is 16 or 17 years old withdrawing from parental control. Now as fast as you have learned this word, forget it. It is not a thing in Ontario. “Emancipation” in Ontario is not as formal. Pretty much a Nathan, as he decided to withdraw from parental control can just decide he doesn’t want to live at home anymore or to be controlled by Dan and Deb and this is fine. Now, the obvious issue with this is where would he get money? Seeing as he has withdrawn from parental control, there is no longer a duty on the part of Deb or Dan to support him. He would need to get a job or go on social assistance, maybe both.
So in episode 1 of season 2, Deb signs the divorce papers and on the first page, there is a section dealing with assets. This section states that “wife shall receive as her own and husband shall have no further rights or responsibilities regarding these assets”. It lists that Deb will get cash (on hand) in the amount of $12,000, cash (in banks/credit unions) in the amount of $450,000 and stocks and bonds in the amount of $120,000. I did not get a glimpse of the houses that are owned or cars or jewelry and how that stuff will be divided. In Ontario, as you know, usually, a more wholistic approach is taken and the parties’ net worth is taken and divided into two the richer party pays out the poorer party so that both parties can be on the same level. I do not have all the numbers so unfortunately, I cannot do a proper calculation for equalization.
I am excited about this show. But will I continue or will I abandon it by season 3? Stay tuned to find out.
Keira is a four-year-old girl who was found dead along with her father at the bottom of a cliff in Milton in February 2020. It is believed to be the case of a murder-suicide. The young girl was killed after being ordered into the father’s unsupervised care, despite many red flags and warning signs of her father’s escalating abusive and controlling behaviour.
In the years leading up to Keira’s death, her mother Jennifer Kagan-Viater remembers an escalation in abusive behaviour by her ex-husband Robin Brown. The couple were involved in an extensive and bitter battle over Keira’s parenting time and safety. In 2019, Jewish Family and Child Services became involved in the case, following an incident in which police were also called to Jennifer Kagan’s home. The same year a court reduced Brown’s parenting time with Keira.
As a result of Keira’s death, Bill C-233 Keira’s law was passed. It became law on May 27, 2023. It is an important piece of legislation as it is a major step forward for victims of intimate partner violence and children. The purpose of the bill is to expand judicial education on domestic violence. Specifically for judges who need to render decisions on cases involving domestic violence, coercive control, and the ability to consider risk factors. The hope is for the bill to have a positive rippling effect going forward for all Canadians.
The Bill would amend the Judges Act to establish seminars for judges on intimate partner violence and coercive control in addition to other education they must go through. The Bill also includes an amendment to the Criminal Code that require justices to consider whether a release order for an accused is in the interests of safety and security. Electronic monitoring devices can also now be a condition of release.
1 (1) Subsection 515(4.2) of the Criminal Code is amended by striking out “or” at the end of paragraph (a.1) and by adding the following after that paragraph:
(a.2) that the accused wear an electronic monitoring device, if the Attorney General makes the request; or
(2) Paragraph 515(4.3)(c) of the Act is replaced by the following:
(c) an offence in the commission of which violence against a person was used, threatened or attempted, including against the accused’s intimate partner; and
2 Paragraph 60(2)(b) of the Judges Act is replaced by the following:
(b) establish seminars for the continuing education of judges, including seminars on matters related to sexual assault law, intimate partner violence, coercive control in intimate partner and family relationships and social context, which includes systemic racism and systemic discrimination.
3 The portion of subsection 62.1(1) of the Act before paragraph (a) is replaced by the following:
Report — seminars
62.1(1) Within 60 days after the end of each calendar year, the Council should submit to the Minister a report on the seminars referred to in paragraph 60(2)(b) on matters related to sexual assault law, intimate partner violence, coercive control in intimate partner and family relationships and social context, which includes systemic racism and systemic discrimination, that were offered in the preceding calendar year.
Violence in family law should not be taken lightly. If you are a victim of domestic abuse, ensure you seek immediate assistance. If you require a lawyer, please speak to one of our experienced Family lawyers in Pickering, Markham, Toronto or Scarborough. You can call us at (905)-492-7662 or email us at [email protected] to schedule a consultation.
It’s scary to think of anything going sideways. Simply thinking of the unimaginable makes us feel like something bad could happen. And yet, we do. That’s why we get insurance – for our car, our homes and even ourselves. We want to make sure we’re protected. However, when it comes to relationships, we hate to think that it could possibly end.
“Our love is eternal”
“We promised to grow old together”
“He/She’s my soulmate”
“We’re destined to be”
While you tell yourself this, you might find yourself reminded of others who have said the same and who are now filing for divorce.
Of course, there’s no saying that your relationship would come to that. It could thrive. It could last your lifetime. And I pray yours does.
In fact, a handful of couples have made it work – kudos to them- however, relationships won’t always turn out the way we want or expect them to.
And while you might not see it now, having a Marriage Contract or Cohabitation Agreement is something you might want to consider before you commit to living together from here on out.
The Marriage Mindset
We want our love to last forever. And while we should all strive to fight for that, we also don’t know what the future holds.
A marriage contract is there to secure you and your partner’s properties and assets if ever things go south. Of course, the goal is to never have to get to that point but then again, you never know.
In fact, if you get a marriage contract, you can just get it and forget it.
So, what’s the point of it then?
If you truly love your partner, you’d have everything set in writing while you can still amicably come to an agreement on things. Also, many people fail to realize that there are unintended consequences to not having a marriage contract at all.
Let’s say that you only want what’s yours or you’ve planned to just shares things if it does come to it, leaving it to the default means you leave it up to the provisions of the law and it may not be what you or your partner intended.
The Unintended Consequences
Now, what could these unintended consequences be?
Although a ton of things come to mind, primarily, the main consequences you should wish to avoid are changes in the provision of the law in regard to marriage and how marriage affects your own personal assets, achievements and income moving forward.
Of course, this involves quite a broad range of things, which is why I’d like to discuss three of the most misconstrued myths behind the division of properties during divorce.
This house is under MY Name before Marriage
Regardless of how much you put towards your home, even prior to marriage, even if it is under your name, it is considered conjugal. The same could be said of other properties and assets acquired before and after your marriage.
That said, if the matrimonial home was initially purchased by you, even with the downpayment being covered solely by you, in the eyes of the law you will still be splitting it 50-50.
Many make the mistake of thinking they’d get a deduction because they put more towards the home than their partner, however, that is not the case. In fact, when it comes to the matrimonial home title it does not matter.
My Partner Used to Earn More and Can Still Earn More
Despite how responsible and financially capable you or your partner may be now, you never know how the tides may turn. You may be the low-income earner or the high-income earner at one point in another during your relationship, and this is fine so long as you are together.
However, in separation, spousal support tends to be very draining especially if things turned out for the worse. It could be that your partner, being the former breadwinner, cheats, turns to drugs, might go into a life crisis of some sort and you end up being the greater-income earner in your relationship at the date of separation.
In this case, more often than not, where the lower-income earner becomes the high-income earner, the now greater-income earner does not want to pay spousal support, and of course, for good reason. Yet no matter the cause of the role reversal, the lower income-earner during the date of separation is entitled to spousal support from the higher income earner.
Of course, there is an entitlement threshold, but most of those who have experienced this scenario say that had they known it would happen they would have organized their affairs differently.
Getting Back Inheritance spent on the Marriage
Another thing we have to look at is your inheritances.
Although inheritance is considered separate property, belonging exclusively to the inheritor, if you decide to put it to use towards your marital assets such as using it on your matrimonial home or depositing it into a joint bank account, it automatically becomes subject to division if you do decide to separate even if your intention was to simply temporarily sustain or improve your shared household during the time it was used.
What if these scenarios don’t bother me at all?
The point of a marriage contract is to be intentional with your future. Even if you aren’t concerned with these unintended consequences, it’s always best to put that into writing this way both you and your partner have a written agreement you can turn to if ever it comes to that. Of course, you could always change the terms in the future, however, at least it would be on your terms rather than leaving it up solely to the law to decide.
This way, both you and your partner have a say as to who gets to keep what and what is considered as yours or your partner’s throughout the course of your marriage.
Separation and divorce are difficult processes for everyone, but it can be challenging to face a reality in which your former spouse or partner has a new partner, especially if this new partner is entering the lives of your child(ren).
If a new partner is growing to be a significant part of your child(ren)’s life, it’s healthy to find a positive way to approach co-parenting with this new individual in the mix. An amicable approach would be the ideal way to handle the situation. It may be hard to acknowledge that your child(ren) feels affectionate towards your co-parent’s new partner but remember that you and your co-parent will always be your child(ren)’s mom or dad. If you can recognize that this person has your child(ren)’s best interest at heart, then support this positive relationship. It is great for your child(ren) to have plenty of healthy support systems in their life. Consider them an extra set of listening ears and an extra set of hugging arms when your kids need support, and you can’t be there.
It is always important to keep the child(ren)’s best interest and needs at heart. Even if this new partner isn’t your favorite person, approach in a polite manner because causing meritless challenges will only impact your child(ren)’s well-being. There is no exact law on how to introduce new partners to your child(ren); parties should act reasonably and consider the best interests of the child(ren). By setting this co-parenting boundary, it will promote positive interactions, and cheerful life experiences to help your child(ren) succeed.
Be advised, this can be a confusing time for your child(ren) with all the changes they may feel internal pressure not knowing how to react. It is incredibly important that the co-parent’s partner is introduced to the child(ren) carefully with a proper plan. Essentially, provide the child(ren) with reassurance that your new partner is not replacing their other parent and being mindful not to overstep boundaries.
If you do have concerns about your co-parent’s new partner, address the concerns to the other parent directly or speak with a family lawyer or mental health professional specializing in post-separation dynamics if there are challenges. On the other hand, if you are the co-parent with the new partner and you feel overwhelmed about the situation, seek professional help to you navigate this tricky situation.
Here are a few tips for setting co-parenting boundaries:
1. Open communication with your ex-partner;
2. Aim for consistency in co-parenting;
3. Prioritize your child(ren)’s best interest;
4. Resolve co-parenting disagreements;
5. Set your own boundaries if required; and
6. Evaluate your own emotional and mental health
Motions are one of the numerous steps in family law. Motions can be brought by either party to the proceeding, and this can be done before the court makes a final decision on the matter in your case. If you are bringing the motion, you are called the moving party and your partner is called the responding party.
Motions allow the moving party to ask the court to make temporary decisions on the matters you have asked the court to decide, ideally on a time-sensitive issue before the outcome of your case is reached. This temporary decision would be in place until the court makes a final decision in your case.
A temporary order can vary as it depends on the type of claim you are seeking but an example would be a request to the court for your ex-partner to pay temporary child support or a decision on parenting time. Another example is when you need a temporary order that says where your children will live and what school they will go to.
Note that we are talking about regular motions which are different from 14B motions. If your motion is for something procedural and uncomplicated then you can file a Form 14B motion. A general example is asking the court for permission to file an Answer after the time to file an Answer has passed.
Here are a few specific examples of when 14B Motions are used:
If financial statements are required in the proceeding and if a party is unable to obtain Canada Revenue Agency documents in a timely manner. A Form 14B may be filed with supporting documents along with an affidavit indicating that the party has filed tax returns and a copy of the return was disclosed to the other side but that the party is still waiting for the Notice of Assessment from the Canada Revenue Agency and request for extension of time. Similarly, if a party believes that the financial disclosure provided by another party does not provide enough information for a full understanding of the other party’s financial circumstances then the party may file form 14B requesting the court to order the other party to give the information requested or to serve and file a new financial statement.
An Applicant can ask the court for an order for substituted service if the Applicant believes that the Respondent is intentionally evading service. In situations where the Respondent has been unresponsive to any communication from the Applicant or the Applicant’s counsel and if service was attempted numerous times with no success. In this situation, Form 14B can be completed to ask the court to allow substitute a service to serve the Application, supporting documents, and affidavit along with proof of attempted service.
If you have served your Family Court Applications and tried communicating with the Respondent and it is obvious the Respondent chooses not to participate in the matter, it is possible to bring a Form 14B along with supporting documents and an affidavit to request the court to note the Respondent in default of the proceedings and to proceed with an uncontested trial.
If the parties to the proceeding agree on a common issue, the parties can ask the court to put the agreement in a court order. They complete simply a 14B motion form, attach the consent, and a draft order that includes the terms that you are seeking for.
Motions are an important tool in family dispute resolution through the courts and the above is a very brief outline of how motions can help you resolve issues in your family law matter.
Narcissistic Personality Disorder (NPD) is a complex condition with significant implications for individuals’ thinking, emotions, and behaviors. Central features of this disorder include an exaggerated sense of self-importance or worth insistent cravings for admiration from others despite the low capacity for empathy or emotional engagement with them and an intense focus on achieving power or success regardless of cost. At its worst NPD can manifest in manipulating or exploiting others to achieve desired ends. When circumstances involve divorcing parties or separating couples such behavior can inflict lasting damage as the narcissistic partner may fixate on controlling assets and decisions involving children.
Managing a separation from someone who has NPD isn’t easy and it can drain you both physically and emotionally. Set up some proactive measures during this period to safeguard yourself against their behavior so that your mental health isn’t compromised further than it may already have been by their disorder. Establish firm boundaries as soon as possible while keeping these expectations clear so there’s less room for manipulation by them. Indulge in physical self-care practices such as regular engagement in mindfulness or deep breathing exercises which will draw lines of physical and mental distance between yourself and their conduct leading to less stress. Keep all communication exchanges brief, focused, and strictly on “business” meaning avoid all confrontations or arguments about anything beyond taking care of parenting issues for example or fairly splitting assets with them as another example, if these are applicable to your circumstances. Engaging in arguments with a narcissist will only provide histrionic outlets for their already inflated ego which is best left unprovoked. Be measured in your tone with them too and avoid losing your cool since anything confrontational feeds into their control and ego.
Remember that while you can control how much energy you give towards separating from a narcissistic partner, it’s not within your power to change their personality. They’re likely to crave attention from all directions so it’s essential to minimize giving them any more than legally required to deal with the issues that pertain to your separation or divorce proceedings.
You could also consider seeking guidance from a therapist who can help with specific advice on how best to handle the challenges of dealing with a narcissistic ex-partner. I am not a therapist but as a family law lawyer who has to deal with these personalities, these are my two cents. All the best!
Family law is a complex and emotionally charged area of law that governs the legal relationships between family members. In Ontario, the family laws are based on case law, the Family Law Act, the Children’s Law Reform Act, and other related legislation. Hollywood has produced several movies that depict the intricacies and challenges of family law. In this blog post, we will take a look at the top ten movies related to family law matters.
Kramer vs. Kramer (1979)
Kramer vs. Kramer is a classic movie that depicts the emotional and legal struggles of a couple going through a bitter divorce. The movie explores the impact of divorce on children and the challenges of co-parenting.
The War of the Roses (1989)
The War of the Roses is a dark comedy that portrays the ugly and bitter end of a marriage. The movie explores the financial and legal aspects of divorce, including property division and spousal support.
Blue Valentine (2010)
Blue Valentine is a raw and emotional movie that portrays the breakdown of a marriage. The movie explores the impact of infidelity and the legal challenges of custody and access disputes.
Mrs. Doubtfire (1993)
Mrs. Doubtfire is a heartwarming comedy that portrays a father’s struggle to maintain a relationship with his children after a bitter divorce. The movie explores the legal challenges of custody and access disputes and the impact of divorce on children.
The Kids Are All Right (2010)
The Kids Are All Right is a comedy-drama that portrays the legal and emotional challenges faced by a same-sex couple and their children. The movie explores the legal challenges of same-sex parenting and the impact of divorce on children.
The Squid and the Whale (2005)
The Squid and the Whale is a dark comedy that portrays the impact of divorce on a family. The movie explores the legal challenges of custody and access disputes and the emotional struggles of children caught in the middle.
The Good Girl (2002)
The Good Girl is a drama that explores the challenges of extramarital affairs and the impact on family relationships. The movie portrays the legal and emotional challenges of divorce and the impact on children.
Revolutionary Road (2008)
Revolutionary Road is a drama that explores the breakdown of a marriage and the legal and emotional challenges of divorce. The movie portrays the financial and legal aspects of property division and spousal support.
A Separation (2011)
A Separation is an Iranian movie that explores the legal and emotional challenges faced by a couple going through a divorce. The movie portrays the challenges of child custody and access disputes and the impact of divorce on children.
The Divorce (2003)
The Divorce is a made-for-TV movie that portrays the legal and emotional challenges of a divorce. The movie explores the financial and legal aspects of property division and spousal support and the impact on children.
Hollywood has produced several movies that explore the intricacies and challenges of family. These movies offer a glimpse into the emotional and legal struggles faced by families going through divorce and parenting disputes. Whether you are a lawyer, a parent, or a movie enthusiast, these movies are a must-watch.
Toby, who had been married to Leah for five blissful years, unfortunately, had to go through the arduous divorce process due to the strain and pressure of the pandemic. After much contemplation and discussion, they decided to dissolve their union in 2021, a recently finalized decision. However, Toby’s fortune changed after meeting his life’s love during a ski trip to Whistler, BC, in December 2022. Overwhelmed with affection and the desire to tie the knot once again, Toby is left with an important question that must be answered before he can proceed to exchange vows with his new partner, “will his divorce be recognized in Canada?”
The question of whether a divorced individual from the United States can get remarried in Canada is not uncommon. Toby’s previous marriage was legally dissolved in the United States as per the country’s legal system. The process involved filing a petition, serving notice to the spouse, division of assets, and agreement on child support, among other aspects before a judge made a final decision on the matter.
However, recognizing a foreign divorce in Canada may not be automatic. Generally, if the divorce is granted in a country that follows similar legal principles as Canada, it is usually recognized. According to the Divorce Act, a foreign divorce can generally be recognized in Canada if both parties involved in the original marriage were entitled to obtain a divorce under the laws of the country where the divorce was granted. Additionally, the divorce decree must meet certain requirements in terms of form and content, and the parties must have been granted appropriate notice and the opportunity to participate in the proceedings leading up to the divorce.
It’s worth noting that Toby may need to meet certain requirements before getting married in Canada, regardless of whether his divorce is recognized or not. For instance, he would have to obtain a marriage license, provide proof of his divorce, and fulfill any other conditions deemed necessary under the Marriage Act, R.S.O. 1990 c.M.3. Moreover, Toby and his new partner may need to be aware of the impact that their marriage has on their immigration status, particularly if one of them is a non-resident of Canada, and they wish to make Canada their home.
While Toby’s US divorce is legally binding in the US, its recognition in Canada, while very likely, given it is in the United States, depends on several factors. To avoid any future legal complications, Toby may choose to seek guidance from a legal professional to ensure that he meets all the requirements before tying the knot.
What happens when one parent wrongfully retains or removes a child from their country of “habitual residence” (HR)? Children suffer in the form of psychological trauma associated with a loss of contact with the other parent, loss of social and cultural ties, loss of familiarity and comfortability with their environment, loss of language, and more.
The Hague Convention was created to rectify the injustice caused by international child abduction, whereby one parent has wrongfully retained or removed their child in another country. The Hague Convention is an international agreement signed by over 100 countries and is implemented in Ontario by s.46(2) of the Children’s Law Reform Act 1990. Its overarching aim is to return a child to the country in which they are classified as “habitually resident” so that matters of welfare can be dealt with in the most appropriate jurisdiction. Importantly, a return order is not an access/parenting order, it is simply an order restoring the status quo prior to the wrongful removal or retention.
The benefits of a return order are threefold:
1. To protect children against the harms caused by wrongful retention/and or removal.
2. To deter parents from engaging in child abduction as an attempt to establish new domiciles.
3. To resolve access and parenting disputes efficiently by establishing the appropriate forum.
The question of “How are the courts to determine the “Habitual Residence” of a child?”, a requirement for an application under Article 3 of the Hague Convention for a return order, was asked and answered in the case of Office of The Children’s Lawyer v. Balev (2018 SCC).
Facts: A couple married in Ontario in 2000, and subsequently moved to Germany in 2001 where they acquired permanent resident status and eventually had two children. When the children began struggling in school, the parties agreed that the mother would temporarily take them to Canada to enroll in school for the 2013/14 year. Upon suspicion that the mother had no intention of returning to Germany, the father commenced an application for the return of the children under the Hague Convention based on “wrongful retention”, which was triggered once the consented temporary period elapsed.
How is “Habitual Residence” determined?
A hybrid approach, focusing on the child’s life immediately prior to the removal or retention, is used to determine HR. A judge will consider the entirety of circumstances relative to both the child’s life before and after removal and the circumstances of the move itself. A non-exhaustive list of factors includes the duration, regularity, conditions and reasons for the child’s stay, the child’s nationality, age, developmental stage, the child’s primary caregiver, and who looks after the child. The parents’ circumstances are also considered, particularly where property has been purchased/leased. Importantly, no single factor is determinative; each case is unique and requires an individual assessment.
It is important to safeguard children’s interests in circumstances of access/parenting disputes and to know how the court will determine a child’s “Habitual Residence” when one party has wrongfully removed or retained the child(ren) in another residence. A hybrid approach ensures the benefits of a return order, namely the protection of children against the harms of child abduction, the deterrence of parental manipulation of a child’s habitual residence and the encouragement of efficient dispute resolution by adjudicating in the proper forum. This approach facilitates the ultimate goal of the Hague Convention: a prompt return of the child.
It is devastating to find out that the person you are spending your life with, or have spent a significant part of your life with, is unfaithful. It feels as if the ground is slipping under one’s feet. As easy as it is for me to write it here, stop, think, plan and follow these steps below to help assist you in separating from your significant other.
1. Talk to a Therapist
While you are building a support system, it is also beneficial for your mental health to contact and speak to a therapist, for expert advice. It will provide you with mental strength that you need to deal with separation and a cheating spouse. They will provide you with coping mechanisms you need to help you move forward in this process.
2. Consult a Family Law Lawyer
After you have taken time to digest the facts, call and consult with a Family Law lawyer. Consulting with a lawyer will assist you in planning for your future. You may or may not choose to separate, depending on your circumstances. However, there is no harm in finding out what you are legally entitled to under the law.
3. Update your Will
If you have an existing Will and Power of Attorney, please contact your Will and your Estate Lawyer to update your Will as your relationship with your spouse changes upon separation. In addition, you will need to update the beneficiary designations as your former spouse may no longer be the person you want to inherit from your investments or estate upon your death.
4. Protect yourself
Once you separate from your partner, you must protect yourself financially. If you have joint accounts, then open a separate bank account. Keep records of any Section 7 expenses you are paying for your children. Good record-keeping will take you a long way. For more information on how to protect yourself financially post-separation, please consult a lawyer.
5. Communicate with your Children Together
If you decide to separate from your spouse, then you and your spouse should sit down with your children and explain to them that their parents will no longer be together. It is important for the children to know that their parents love them dearly, but now they will have two households instead of one.
Sometimes, children get wrapped around adult conflict, and it is essential for the parents to put their conflict on the side and think of the children’s best interests. You and your former spouse will be parents for the rest of your children’s lives; the earlier you start co-parenting, the better it is for them emotionally.
6. Build a Support System
Separation and divorce can be emotionally draining. Talk to a friend or a family member you trust and build a strong support system around you. Not only do you need it for yourself but also for your children. It is comforting to know that you have a shoulder to cry on and can rely on your support system anytime throughout this process.
Dealing with family law matters can be incredibly stressful and emotionally draining. The prospect of facing legal proceedings can be overwhelming, whether it’s a divorce, parenting dispute, property division, or another issue. Mental preparation can help you navigate these challenging situations more easily and resiliently. Here are some tips for how to mentally prepare for a family law matter:
Acknowledge your emotions
Feeling a range of emotions is normal when going through a family law matter. You may feel angry, sad, betrayed, or overwhelmed. Acknowledge these emotions and allow yourself to feel them. It’s okay to cry, scream, or vent to a trusted friend or therapist. Remember that taking care of your mental health is important during this process.
The more you know about the legal process, the less scary it will seem. Research the laws or rules that apply to your situation and familiarize yourself with the legal terminology. Learn about the steps involved in your case and what you can expect at each stage. This knowledge will help you feel more in control and better able to make informed decisions.
Find a good lawyer
A good lawyer can make all the difference in a family law matter. Look for an experienced Family lawyer who specializes in family law and has experience with cases similar to yours. Make sure you feel comfortable with your lawyer and trust their advice. A good lawyer can provide you with guidance, support, and advocacy throughout the legal process.
Set realistic expectations
Family law matters can take time to resolve, and the outcome may not be exactly what you want. It’s important to set realistic expectations and be prepared for the possibility of a less than ideal outcome. Focus on what you can control and work towards a positive outcome within those limits.
Taking care of yourself is crucial during a family law matter. Make time for activities that bring you joy, such as exercise, meditation, or spending time with loved ones. Practice good sleep hygiene and eat a healthy diet. Taking care of yourself will help you stay strong and resilient during this difficult time.
Preparing mentally for a family law matter is critical to your ability to navigate the legal process with ease and resilience. Acknowledge your emotions, educate yourself, find a good lawyer, set realistic expectations, and practice self-care. By following these tips, you’ll be better prepared to face any challenges that come your way.
I always liked Good Luck Charlie. I mean it’s no That’s so Raven or Hannah Montana but still, I remember being so excited to watch this show every time it came on. I remember when Spencer cheated on Teddy, I felt like I was the one who was heartbroken. Great show.
For the non-90’s babies, the older 90’s babies and the non-Disney channel watchers, let me give a breakdown of the show. Main character is Teddy. She’s a 15-year-old girl dealing with high school, friends, boys, driving and all the other regular teenage things. She has an older brother and a younger brother. Her parents decided to have another baby, Charlotte a.k.a. Charlie. Teddy then decided to document her life and make videos for Charlie to be able to refer to when she is older. At the end of the videos which usually occur at the end of the episode, she always says “Good Luck Charlie” hence the name of the show. It’s not a bad show at all and it actually still holds up. I refuse to confirm or deny if I have watched episodes of the show recently.
Why is a children’s show featuring in the Cut blog? Who could possibly be getting divorced on Disney? I mean Carrie from Suite life comes to mind. Also, Phineas and Ferb, we were actually never told about Phineas and Candace’s birth father and Ferb’s birth mother. Come to think of it, no parenting time was ever sought by the parents so what was that about?
Okay. None of that is relevant. Let’s get back on track. The reason that this show is being featured in the Cut blog is not for divorce. Family law is not all about separation, sometimes we are there for the inception too. *ahem* inserts plug about how you should retain AP Lawyers for your marriage contracts.
The reason that this is being featured is interesting. So after four children, a mortgage etc, Teddy’s parents, Amy and Bob decided to go on a skiing trip. On this trip, they find out that they were not actually married. Apparently, Judge Lawson, the person who married them was some kind of con man who did fake marriages all the time. They did not realize this at the time, obviously so they thought they were married.
If this had happened in Ontario, what would the courts have done? Luckily, we can look to the case of Swinden and Crowell. It is almost exactly what happened in Good Luck Charlie. In that case, the parties were married but apparently, the Reverend was not qualified to marry them. The Reverend in this case was not a scam artist, she genuinely thought she could marry the parties Now they were looking for a declaration that they were married.
In Swinden, the court held that four elements must be applied for a marriage to be deemed valid under the Marriage Act:
1. The marriage must have been solemnized in good faith;
2. The marriage must have been intended to be in compliance with the Marriage Act;
3. Neither party was under a legal disqualification to contract marriage; and,
4. The parties must have lived together and cohabitated as a married couple after solemnization.
For the first element, I believe the marriage between Amy and Bob was solemnized in good faith. They fell in love, got married and had children. For the second element, I am sure they intended to comply with the Marriage Act of the state that they lived in (Colorado, apparently). Again, we are looking at this as if it happened in Ontario so we assume that yes they did intend to comply with the Marriage Act. For the third, as far as we know, there is no legal disqualification. Off the top of my head, a legal disqualification could be if either person was at that time married to someone else. This would disqualify them from marrying another person as bigamy is not allowed in Ontario. As far as we know, this is not the case. For the final element, Amy and Bob have lived together as a married couple. They own a home together and have 4 children (they eventually have a fifth).
Amy and Bob fulfill all the grounds so likely an Ontario Court will hold that they are still married. They did end up getting married again at the lodge but if this was in Ontario, it would likely have been unnecessary.
Reconciliation between two parties can be a powerful thing, but it can also have unexpected effects in certain legal situations. Absent any provisions to the contrary, reconciliation will terminate a separation agreement between the two parties. This means that any clauses or agreements outlined in the initial separation agreement will no longer be valid and any assets or liabilities that were to be shared based on the terms of the agreement will no longer have to be divided between the two parties. Anything that has already been divided is unaffected, though.
When it comes to your separation agreement, whether or not it will be terminated by reconciliation depends on the terms of the agreement itself. Generally speaking, if it is clear from the terms of the Agreement that the parties intend for all or part of an agreement to remain intact even if reconciliation occurs, then it will not be terminated. On the other hand, if there are no specific stipulations about this occurring in the Agreement then reconciliation may terminate the entire agreement.
If you are going through a period of difficulty and considering entering into a separation agreement with your partner, it’s important to be aware that reconciling could potentially terminate any agreements you make during this period. Before signing any agreements, you should always seek legal advice to ensure your rights are protected and understand how they might change if reconciliation were to take place further down the line.
Overall, when considering reconciliation after entering into a separation agreement with your partner – no matter what form that takes – it’s essential to remember that any agreements you’ve made could potentially be affected by reconciling with your partner again. If in doubt about anything at all related to your situation, make sure you consult with our team at AP Lawyers as soon as possible so you know exactly where you stand both before and after reconciling with your partner again.
I was speaking to a friend of mine a few days ago, and she was saying how she could not believe that I had not touched on Scandal yet in the Cut blog.
How could I forget everybody’s favourite “I don’t tolerate cheating, but…” couple? #olitz
So, let’s do Scandal. Olivia Pope is one of TV’s most iconic characters. Her walk, her emphasis on certain words, her suits, her crying face. I mean, the woman is a force.
Her job title is something called a “fixer.” What this means is that people hire her to clean up their messes. A powerful man gets a girl pregnant outside of his marriage and wants to run for Congress? She makes the problem go away. Most times not in a murder-y type of way, but also sometimes, kinda? Shout out to Huck. Anyway, she’s the best at her job and does it well.
Olivia gets hired by the president of the United States, Fitzgerald Grant the Third, to fix his image when he was running for the presidency. They somehow fall in love and start an affair. From the start, Fitz just wanted to run off into the sunset with Olivia. Man did not really care about being president. Mellie knows about this affair for almost the whole length of the thing. She and Fitz then become more platonic partners who happen to be married than a romantic couple. Fitz seems like generally a good guy (except for the whole telling Mellie she was disgusting for not showering shortly after their son died. Oh, and the rigging of elections stuff. Oh, right and also the war criminal stuff. But apart from that generally a good guy). Olivia is more grey, which makes her a more complex and interesting character. Anyways, at some point, Mellie gets sick of playing the long-suffering wife and she gives Fitz an ultimatum of 36 hours. She tells him to choose between her and Olivia. This man spent the last few hours of the ultimatum with Olivia and said ‘We’re gonna sit here, and the clock of my marriage is going to run out.’. This man is bold. Like actually bold.
Anyways. Surprise, surprise, they divorced.
It’s kind of funny that we are examining what would happen if the president of the US was getting divorced in Ontario but here we are. Let’s get into it.
Take your pick: infidelity or separation for a year. Pretty straightforward.
Did you know that the first lady of the United States does not get a salary? I literally found that out as I was doing research for this. Pretty shocking, huh? Anyways, at the time of the divorce, Mellie was a senator.
Anyways. There are three children of the marriage: Jerry Grant Jr., Karen Grant, and Teddy Grant. At the time of the divorce, Jerry had actually been killed so there were two children left.
The salary for the president of the United States is USD $400,000 (roughly CAD $536,840.00). The salary for a US senator is $174,000. The Child Support Guidelines provide for something called a ceiling for the Payor’s income.
This ceiling is $150,000. Mellie earns just over this, and Fitz earns about 3.5 times more than the ceiling. In a 2016 case, the father earned about $4.8 million, and the table amount was $79,791 per month. The judge held that this was excessive and that he should pay $20,000 instead. The judge made this decision because he took into account their lifestyle pre-separation. I don’t think that will apply here. In case you have not been paying attention, the man is the President of the United States, and Mellie is a senator.
If the children are living exclusively with Mellie, Fitz will likely be ordered to pay the table amount of $6,719.00. If the children are living with both parents equally, then Fitz will have to pay the set-off amount of $4,354.00. If the children live exclusively with Fitz, then Mellie will pay child support to Fitz of $2,365.00.
I do not see why shared parenting will not be ordered, so this is likely what the case will be with Fitz paying Mellie $4,354.00 monthly
I feel like Mellie will be entitled to Spousal support. She went to Harvard Law and graduated top of her class. She even practiced as a lawyer for a while but then she put aside her aspirations because Fitz wanted to run for office. She has been a loyal wife and took the time to raise the children. They were also married for at least 16 years. Now she works as a senator but she may have been higher in her career as a politician (I mean the woman eventually becomes president. Talk about a bright future). There is no needs basis but there is a strong compensatory one.
For spousal support, the ceiling is $350,000.
The range of spousal support for Fitz’s income is between $4,790.00 and $8,002.00 per month. A judge may decide to go higher than these numbers though. I do believe that Mellie is entitled to at least the mid-point of support if not the high.
This would actually be an interesting exercise. Unfortunately, I do not have enough information to use to calculate this.
Now that is done, can we talk about how crazy it was that they killed off Rosen? On the other hand, it kind of makes perfect sense. No good person goes unpunished
Yes, this is another blog on the date of separation. This just goes to show how seriously important this is.
Okay, so facts.
The parties had two daughters. They had been married since in or around 2004. They had a separation agreement dated April 1, 2015. The Respondent’s wife wanted this separation agreement to be set aside. The Court believed that her reasons were contradictory, probably because she changed them so often. She went from saying she did not have legal advice to saying that she was misled by the legal advice and even brought a law society complaint against her lawyer. At one point, she also stated that she made the agreement to help her husband out with a business issue. The Applicant’s husband disputes this and says that the separation agreement is legit.
‘Ms. Hannora and Dr. Kasmieh were not separated at the time that they signed the Agreement, did not intend to separate, nor did they intend to be governed by its terms. Nothing changed in their day-to-day life, but their tax filing status permitted Ms. Hannora, as a separated spouse, to continue to be eligible for significant tax credits and benefits despite her husband’s dramatic increase in income after he qualified as a family physician’
The Applicant’s husband never paid support, nor did he apply for divorce. To explain this, he claims that the household account paid from the matrimonial home should be considered child support. The Court declined to do this because, on the facts, it just does not make any sense.
On December 18, 2019, the Applicant’s husband was charged with assault, and he said to the Respondent’s wife, “I divorce you” three times. This is known as “Talaq”. It is the process of initiating an Islamic divorce. After this date, the parties started to live separately and actually started to act like a separate couple. The Respondent’s wife wanted February 2020 or July 16, 2021, to be decided as the date of separation. The court stated that a date of separation does not require concurrence; only one spouse needs to form the intention to separate. The Applicant chose February 2020 because she claimed that they had gone to their Imam (spiritual leader) and had reconciled after the 2019 date. She provides the 2021 date as an alternative to when she received the introductory letter from the Applicant’s husband’s lawyer. The Court decided that the date of separation be December 18, 2019. It was what made the most sense.
It is interesting because while the court did not find the Respondent’s wife credible or reliable, the agreement still got set aside because of the circumstances of the matter. The Court outlines the difference between finding a sham agreement (which is what it did) and setting aside the contract pursuant to section 56 of the Family Law Act (which is what the Respondent’s wife was seeking). The difference is whether both parties have participated in the mischief, or one party alone bears the cost of having duped the other, respectively. Justice McGee refers to it as a difference with a distinction.
As I am sure is not a shocker to anyone who reads these, I like TV shows—a lot. So, I am always on the hunt for new ones.
I recently (and by recently, I mean like a year ago) came across this show called Harlem. It follows four best friends going through life. I really like shows that focus on twenty-somethings navigating female friendships with romantic relationships as the secondary theme. They always warm my heart. A couple of women going through the struggles of life, work, romantic relationships, platonic relationships, familial relationships, and just the general pitfalls of being an adult. So, I enjoy shows like Insecure, Dollface, and Girlfriends, although I really really really still hate Joan, I mean she was annoying as heck, selfish, boy-crazy, and elitist. She prioritized men that she barely knew over her female friendships. She thought she was better than everyone for reasons best known to her. She… okay, wait. Joan Clayton is not the focus of this blog. I’m just really passionate about my dislike for Joan from girlfriends.
Let’s get back to our focus. Harlem.
So anyways, I find this show online and I see that it has Meagan Good and I’m like cool. Let’s do it. Four friends. We have Camille Parks who is an Anthropology professor; Quinn Joseph who is a trust fund baby and also a fashion designer and has a complicated relationship with her mother (come to think of it, so does Camille); Angie Wilson who is a struggling upcoming actor and Tye Reynolds who is in tech.
This blog will be focused on Tye. Tye is probably the most successful in the group She created a dating app for queer individuals that became pretty successful. Tye had struggled with her sexuality when she was younger. She had married a man named Brandon. She got tired of faking it and decided to live out loud as her true self. But in the process of doing this, she sort of just abandoned Brandon. It was not even a proper breakup. She just up and left one day and in her words ‘never looked back’. Ouch.
Anyways, we don’t find out about Brandon until Tye collapses and has to be rushed to the hospital. We find out that she has fibroids which the doctor says can be taken care of with a hysterectomy. The doctor tells her to go home and discuss it with her husband. Which is problematic in and of itself but in this situation, more confusing. We (viewers and her friends) are like what husband? She’s gay! But then the doctor reveals that there is a husband that had apparently been contacted and had given permission for the surgery to happen. Brandon walks into the hospital room and Tye has to confess to her friends that this was her husband. When I tell you, my jaw was on the floor at that scene.
Brandon had come back because he had missed Tye. But Tye had misinterpreted his presence to mean that he wanted something. To be fair to Tye, I would have thought the same thing. I mean realistically, no romantic relationship could happen because Tye is a lesbian so it’s like what does Brandon want? Anyways, Tye tells him that if he leaves her alone, she’ll give him $25,000. This of course pisses Brandon off, which, again, is fair enough. If I was Brandon, I’ll be pissed too. You can’t even break up with me properly and now you think I am after your money, how dare you? I see both sides.
Anyways, Brandon is basically like if you think I’m a gold digger, let’s go, I will actually dig your gold.
So, if Brandon and Tye lived in Ontario as opposed to Harlem, what would Brandon’s claims be? Do they have merit? Let’s find out.
This is pretty cut and dry. They have been separated for over a year so they can get divorced.
Okay now, this is the big one.
In the next episode, after we find out about Brandon, we see a flashback to five years prior. Tye was working in a company where she felt under-appreciated and she was also in a relationship where her girlfriend, Melissa was asking her to move in with her. Now Melissa mentions that they had been together for a year. They do not explicitly tell us how long Tye and Brandon have been separated but from this math, it has to be at least 6 years. Melissa of course breaks up with her once she finds out about Brandon. Poor thing was so appalled that Tye could treat someone like that, so she dipped.
But why is the number of years they have been separated relevant?
There is something called a limitation period. What this means is that after a certain number of years, you are not allowed to make certain claims. For equalization, the limitation period depends on your situation. If the spouse is dead, 6 months after they die. If they are already divorced, 2 years after the divorce has been ordered and, in our situation, where no one has died or is divorced, the limitation period is 6 years from the date of separation.
Okay so they have been separated for at least 6 years from our calculations, so Brandon appears to be barred from making this claim. We know that Tye is worth exactly $2,010,176.24 which she made in the 5 years leading up to Brandon’s claim but seeing as they have been separated for at least 6 years, Brandon gets nothing.
Now, Brandon could possibly apply to the Court for an extension BUT, there needs to be a very good reason to do so. Brandon does not have one so again, nothing for him.
Now Brandon does not seem to make a claim for Spousal support. But is he even entitled to it? There is no limitation period for spousal support but there needs to be eligibility. I do not think that there is eligibility here. They have lived separately and apart for at least 6 years. From what we can see, it seems like they were only married for a short while before Tye left. No one seems to have suffered any economic advantage or disadvantage from the breakdown of the marriage. At the time that Tye left, they were probably pretty evenly matched.
If we learned nothing else from this blog, we should learn that when you are done with someone, break up with them properly so that they don’t become a nuisance later. Don’t be a Tye.
‘Have some sympathy, Tasha. I just lost the love of my life is probably one of the wildest and funniest lines ever said on TV.
Let me give some context.
Okay, the show’s name is Power. It’s about James “Ghost” St. Patrick, a drug dealer with a nightclub named “Truth” as a cover. Oh, the irony. Ghost is married to Tasha, and they have three children together, Tariq, Raina and Yasmin. The first episode starts with Ghost running into his high school sweetheart, Angela. They start up a relationship again and fall deeper in love. Now, Angela is a lawyer (I promise her last name is not Princewill) and eventually becomes privy to Ghost’s shady business. They break up for a little while. Ghost goes to prison for, funny enough, the one crime that he did not commit, and then they get back together. Long story short, Angela worked for the District Attorney looking to prosecute Ghost for the actual crimes he committed (you know, the drug dealing, the murders, etc., no biggie). Angela had actually come around to Ghost’s drug dealing and illegality because love conquers all, and she was now looking for a way to help him out. Ghost’s business partner, Eminem look-alike and my personal favourite character from the show, Tommy, decides to kill her because he does not trust her. He succeeds. Right after her funeral is when the above words were said by Ghost… to his wife… about his girlfriend on the side! Meh, it’s funnier if you watch it, I promise.
Anyways. They decide to divorce for incredibly obvious reasons. And as we love to do, let’s figure out what would happen if this happened in Ontario, Canada, shall we?
Infidelity is a valid ground for divorce in Canada. Ghost cheated with Angela, and Tasha cheated with Shawn. They could, however, also decide to use their separation because, by the time they were getting divorced, they had probably effectively been separated for over a year.
Parenting Time and Decision-Making Responsibility
So Tariq is an… interesting kid. His dad was a drug dealer but did not want that life for his son, so he made sure he went to the best schools, lived in the best neighbourhoods, and overall had the best life. Tariq did not want this, however. He wanted to be just like his dad, a drug dealer and feared in the streets. You know what they say about apples and trees. Tariq’s wannabe drug dealer antics killed his twin sister, Raina, because he had pissed off a dangerous man. Anyways, in one of my favourite episodes, after Tariq had done something very stupid yet again, Ghost walks into his room, puts a gun to his cheek and says, ‘Wake the f**k up, sleepy time is over, you little mu*******er, let’s go.’ The Court may have a slight issue with a parent pointing a gun at his child. Such softies.
Realistically, Ghost was not really a present father. He wanted the best for his children, but all his time was spent selling drugs, being in jail and cheating on his wife. He is also a dangerous man who hates killing people but will still do it. While Tariq’s stupid decisions got his sister killed, it was Ghost who had the connection in the first place. It may be in the children’s best interests for Ghost to have minimal parenting time and decision-making responsibility.
If we are being fair, Tasha is not fully innocent either. She spent her time covering up Ghost’s tracks, burning his bloodied clothes and getting rid of guns/murder weapons. Realistically, it may also not be in the children’s best interests for Tasha to have parenting time and decision-making responsibility either. The difference here, however, is the fact that Tasha is not the face of the operation. Everyone knows who Ghost is, and many people are trying to kill him. But no one really knows Tasha, except as Ghost’s wife, and no one is really trying to kill her (except maybe Ghost). She may be the lesser of the two evils; from what we see, she is actually a good mother.
This will actually be interesting to calculate. Likely, Ghost will only claim his income comes only from Truth, but Tasha knows better. An average bar owner makes $67,390, according to Google, but honestly, Ghost’s club seems as if it makes legitimately makes significantly more. Regardless, Ghost is able to afford Choate Private School for his children and a penthouse in Manhattan, New York. Tasha will likely be seeking to impute income to him, which will probably be granted because he is the biggest drug dealer in New York.
Tasha signed a marriage contract or “prenup” before they got married. I’m not exactly sure what the contract terms are, but Tasha had previously stated that she did not want to get divorced from Ghost because it meant she would be left with nothing. Tasha could possibly try to contest this contract in Court. She could claim that she did not have independent legal advice and that some contract terms are unfair and should be set aside. She could also even claim that she signed the contract under duress. I mean, the man is a drug dealer with access to many weapons. Tasha paused her whole life to raise the children and help Ghost run Truth/the drug business. It does not seem fair that if they get divorced, she gets nothing. Unfortunately, because I have no idea what the contract terms are, I can’t state her level of success in setting aside the contract.
Tasha, as I mentioned above, does not have any income. She has dedicated her life to supporting Ghost and his enterprises and raising children. For her, spousal support will be on a compensatory basis and on a needs basis.
A user on Reddit suggests that Ghost was worth about $150 million. I have no idea how they got to this figure, but we are running with it. Tasha is probably not worth that much. She may have some jewelry or maybe her name is on a title for the penthouse. Let’s say she’s worth $ 1 million, for argument’s sake. Ghost will pay Tasha half of the difference between their net worths to calculate equalization.
$150,000,000 – $1,000,000 = $149,000,000
$149,000,000/ 2 = $74,500,000
Ghost would have to pay Tasha a whopping $74,500,000. Whew! Except for the marriage contract states otherwise.
I hope that gives a little insight into what would happen if a Big rich town was set in Ontario, Canada. Anyways, RIP Proctor. The legal profession misses you.
New year, new beginnings, many are already preparing for valentine’s day. Love is on the horizon for you, and you may think of tying the knot with your significant other.
I want to start off by saying I’m thrilled for you. I love, love. I spend most of my work hours dealing with issues for people who have lost the love they once felt toward their partner, so when I get the chance to work with couples who are just about to take the plunge, my thrill knows no bounds.
So you’re about to get married. Here’s what I think you need to know from my perspective over a decade as a lawyer.
The legal vs. social perception of marriage
Socially, marriage is a celebration of love; we gather our closest and dearest (even if over a thousand people) to come to witness our love. Kindred spirits, and soulmates, finally joined together.
Legally though, your marriage is just a contract that confers rights and responsibilities. Remember this!
Property brought into the marriage may or may not be excluded
It is always shocking to people when they discover that they have to share equal properties that they brought into the marriage.
The good news is that you get the gist with most properties such as RRSPs, investment homes, stocks, bonds, Pokémon cards, etc. You are able to deduct the value as of the date of marriage. So you only share the portion that accrued during the marriage.
So if your real estate investment portfolio was worth $1,000,000 on the date of marriage and on the date of separation, it is worth $1,500,000, and your partner only gets half of $500,000.
Now, do not for a minute think this is always the case. You see, I was specific when I said investment real estate. The matrimonial home is a whole different beast.
Absent a domestic contract to the contrary, the full value of the matrimonial home will be shared equally. So using the figures above, your partner gets $750,000, NOT $250,000. Ouch.
Without a marriage contract or cohabitation agreement, or if you prefer the cool version – prenup, most people will have no idea what their assets were worth on the marriage date. So, most people will not even be able to prove the date of marriage deduction they believe they are entitled.
It is extremely challenging to find statements for your stock portfolio’s worth in 1993!
Inheritance received during the marriage
This is interesting as most people believe they have a right to share in their partner’s inheritance. After all, even if on a subconscious level, the testator must have intended it for the family. Right?
Unfortunately, gifts and inheritance received during the marriage are excluded from net family property calculation, so it is not shared.
Again, not so simple. If you received your inheritance, deposited the funds into your joint accounts, and then it gets spent on a vacation, and nothing’s left on the date of separation, you don’t get the exclusion.
If you put the money into renovating the matrimonial home, kiss it goodbye.
I hear your thoughts. You are thinking, I got a $100,000 inheritance, and there’s still $50,000 of it left in our joint account. I get to exclude that $50,000, right? Well, there is a possibility that those funds may have lost their exclusionary character. It depends on the facts of your case.
Under the law, you have an obligation to support your significant other. The amount of support will depend on various factors such as the length of your relationship (notice I didn’t say marriage here), the roles you played in the marriage, age and the responsibilities that exist post-separation, for example, child care.
People are often shocked that they have to support a partner who chose not to work or took lower-paying part-time work. The fact is if you were ok being the breadwinner during the marriage, except you have a marriage contract to protect you, expect that you will continue to support your spouse even after you separate.
The law will make no exceptions because you always told them to get a job or that they have a Ph.D. from 20 years ago and could even make more money than you. If the facts are they were not working and you have supported them for some time, at the very least, on a needs basis, be prepared to pay spousal support.
Children from previous relationships – are you the daddy?
This one is a little emotional. Generally, we like to think of ourselves as good people. You married or cohabited with this person who had a precious little one. You were a great father figure and role model to this child. Taught them everything they knew. You were always there for them because you’re a “stand-up person.” This child loves you.
I know. You’re a good person. You believe it, and so do I, but do we really want to convince a judge of this? It’s called standing in loco parentis or, in English, standing in the place of a parent. While that is all good, being a parent means you have an obligation to support the child financially, regardless of whether you remain in the child’s life.
What does this financial obligation entail? A few hundred dollars once in a while for your little buddy? Nope.
You will have to pay the amount specified by the child support guidelines and a proportionate share of the child’s special and extraordinary expenses, which include things like daycare, hockey, and post-secondary expenses, to name a few.
Suppose you earn $200,000 and they earn $40,000 annually and have one child from a previous relationship who plays rep hockey ($5,000/year) and soccer ($2,000/year) and needs tutoring ($5,000/year).
You could be looking at paying $1,299 in base child support monthly and 79% of the other expenses, which would come to another $790 monthly.
As you can imagine, the above are just a few illustrations. There are many more rights and responsibilities that flow from entering a marriage.
So how do you deal with/ avoid the unintended consequences of marriage? You get a marriage contract or cohabitation agreement. Talk to a family law lawyer in Pickering. You can even agree in the contract that you want to share all your assets equally. That way, you’re both intentional about the consequences you want out of this marriage. Of course, this is just like getting dismemberment insurance. It’s never going to happen to you. You have it, just in case.
To help our clients have a better understanding, below are some common terms used in the Family law process and their definitions
This includes physical, mental or psychological, verbal or emotional,and sexual abuse. It is the mistreatment or infliction of cruelty on a person.
In Ontario, abuse (cruelty) is one of the three reasons to apply for a divorce. The other two are: adultery and living separate and apart for at least a year.
It is defined as the time a child spends in the care of a parent of the child, whether or not the child is physically with the parent during the time.
The term “access” is now referred to as “parenting time”,pursuant tothe amendments to the Divorce Act, Family Law Act, and the Children’s Law Reform Act, that came into effect in March 2021.
Also known as infidelity or unfaithfulness. Adultery is the process of engaging in extramarital affairs.
In Ontario, adultery is one of three reasons to apply for a divorce. The other two are: abuse (see definition above) and being separated for atleast a year.
This is a sworn legal document. The author of the affidavit, by signing, swears and promises that the content is accurate and truthful to the best of their knowledge. Affidavits must be signed in front of a lawyer, justice of the peace, notary public, or commissioner for taking affidavits.
Refers to one parent saying or doing things in front of a child that may lead them to be critical of the other parent.
This term is referred to as “spousal support”. It is money paid by one spouse to the other after separation. The Courts usually looks first at eligibility, and then quantum and duration.
Spousal support can be either paid monthly or in a lump sum amount. The Divorce Act states that the Court must consider the condition means, needs, and other circumstances of each spouse, including the length of time the spouses cohabited; the functions performed by each spouse during cohabitation; and any order, agreement, or arrangement relating to support of either spouse.
Alternative Dispute Resolution (ADR)
These are other methods of resolving a matter out of Court (i.e.litigation). Some forms of ADR include Mediation and Arbitrationand Collaborative Family Law.
This is the declaration by the Court that a marriage is null and void.In other words, it means that the parties were not actually married.
In Ontario, there are very limited grounds when a marriage will be annulled. Some of the examples include a spouse already being married at the time the marriage took place. Another example is if the marriage was performed under duress.
An Answer is the Respondent’s response to the Applicant’sApplication (see definition below). It is usually due 30 days after the Application is served.
In an Answer, the Respondent gets an opportunity to rebut the points made by the Applicant as well as to introduce new issues they may have relating to the marriage and its breakdown.
This is the process by which a party may have an Order given by a Court reviewed by a higher Court based on an error of law or fact on a decision.
In some situations, leave needs to be granted for an appeal. This means that permission must be sought from the Court before the appeal is brought.
A party in a family law matter initiates the proceedings by serving and filing an Application in the Family Court.
The first document submitted to the Court in a family law matter. TheApplication details the issues relating to the breakdown of the marriage as well as Orders being sought by the Applicant (see the definition above).
Is assessing the worth of a party’s assets. This could range from a home to a car or even a business. To determine equalization, the assets of the parties are usually appraised.
This is a form of Alternative Dispute Resolution (see definition above). The Arbitrator is a neutral third party, chosen by the parties to a matter, who hears both sides and then makes a determination of the outstanding issues in a matter.
Is an impartial third party that conducts an Arbitration (see definition above).
The Children’s Law Reform Act states that the Court may appoint an expert (a psychologist, social worker, psychiatrist, or mental health professional) to assess the needs of the child as well as the ability and willingness of the parties or any of them to satisfy the needs of the child.
The assessment is a report prepared by the expert.
A beneficiary is a person who has been designated to receive the benefits (monetary or otherwise) under a Will, Trust, Life Insurance Policy, or the like.
Best Interests of the Child
The best interest of the child is a test used by the Ontario Courts to determine decision-making responsibility and parenting time schedules for the children. This test is outlined in section 24 of the Children’s Law Reform Act.
In determining this, the Court usually considers a number of different factors including but not limited to the child’s age, relationship with each parent, the child’s views and preferences (the weight of which depends on their age and level of maturity).
Book of Authorities
This is a book that has a list of all the cases and legislation that a party intends to rely upon at Trial.
Breakdown of a relationship
This is also known as separation. It is when a couple decides that they no longer want to be together.
A relationship may also breakdown as a result of the death of one party.
It is a meeting, presided over by a Judge, with the parties, and their lawyers. A case conference is an important part of the family law litigation process because it promotes resolution of the various issues in a case.
Generally, only procedural Orders and/or Orders on consent may be made.
Also except urgency can be shown, no motions may be brought before a case conference.
Case Conference Brief
Is a document both parties must submit prior to the case conference date.
The document outlines facts and information regarding the case.
Refers to the removal of a child from the care or control of the person with whom the child is legally residing at the time, without theconsent from said party.
A child can be abducted by their parents. For example, a child who resides with their mother, is removed by the Father, without the Mother’s consent.
Is the amount of money paid, typically by one parent to the other, to cover the costs of caring for a child.
It is usually based on the income of the payor and the number of children. It is paid to the parent who has the child[ren] living with them most of the time, by the parent who has secondary parenting time with the child[ren].
In a situation where parenting time is split equally, child support is calculated based on each parent’s income and then the difference is paid by the higher-earning parent, in what is called a “set-off” amount.
Child Support Guidelines(CSG)
The Child Support Guidelines sets out how much child support a Payor parent is required to pay to the Recipient parent for the benefit of the child[ren]. The amount of child support is based on the Payor’s income and the number of children for whom they are paying the support. It is sometimes referred to as “table amount” (see definition below).
Coercive controlling behaviour
This is a factor relating to family violence. It is a series of abusive actions to intimidate and control a family member or an intimate partner.
The Family Law Act defines this as “living together in a conjugal relationship whether within or outside marriage”.
Collaborative Family Law
Is a form of Alternative Dispute Resolution (see definition above). This term refers to both parties working on resolving the legal issues collaboratively with their representatives who are trained Collaborative Family Law Lawyers.
Collaborative Family Law Lawyer
This is a lawyer that practices Collaborative Family law (see definition above).
Is a person, not legally married to their partner but has continuouslyresided with them for at least three (3) years, or is in a relationship of some permanence and are the natural or adoptive parents of a child.
This is a duty that lawyers owe to their clients to keep all their information and communication relating to their matters private.
Consent to Order
This is a written and binding document that formalizes the issues that the parties are in agreeance to.
This is an equitable remedy granted by the Court for unjust enrichment. In a situation where property is owned by a person, who as a matter of fairness should not own it, the Court may grant another party a constructive trust over the said property meaning they become a beneficial owner.
Pursuant to the amendments to the Children’s Law Reform Act, this term refers to “access by a non-parent to a child”. It is defined as the time a child spends in the care of a person other than the child’s parent, whether or not the child is physically with the person during that time.
Is an Order granted by the Court that allows a child to have contact with a person who is not a parent and who does not stand in the place of a parent.
These are taxes that may have to be paid out when an asset is disposed off. Assets may include shares in a business, or the draw-down of RRSP assets and pay-out of a pension.
The term refers to the issues arising out of the breakdown of a marriage other than the divorce itself. These issues may include, child decision-making responsibility, parenting time, child support, spousal support and the division of property.
Payments ordered by the Court, once a motion or trial is determined, to compensate the successful party for some or all of their legal fees.
Canada Pension Plan (CPP)
Generally, a person who works and has attained the age of majority contributes to their CPP if they earn over a certain amount. The CPPcredits accumulated during the marriage are divisible during a divorce.
Is one of the grounds for a divorce. It is the mistreatment or infliction of abuse on a person. This is also known as abuse (see definition above). This includes physical, mental or psychological, verbal or emotional, and sexual cruelty.
This term is now referred to as “decision-making” pursuant to the changes in the Divorce Act, Family Law Act, and the Children’s Law ReformAct, that came into effect in March 2021. This term is nolonger used in Ontario.
Decisions made by parents during their parenting time. It can include decisions around dinner, clothes, and so on.
Day-to-day decisions are not included in decision-making responsibility and are usually expected to be made by the parent who is caring for the child[ren] at the time.
Decision making responsibility
The right to make important decisions about a child’s well-being including decisions regarding:
• Religion; and
• Extra-curricular activities.
Defined Benefit Pension Plan
A pension plan that promises that upon retirement, an individual shall collect a pre-determined monthly income for life. It is one of the most valuable asset in a divorce and must be included in the division of property.
Defined Contribution Pension Plan
A pension plan in which both the employer and the employee contribute to the employee’s pension over time. The contributions to the retirement plan are known.
Pursuant to the Family Law Act, it is a person to whom another person has an obligation to provide support. This includes children of a marriage/relationship, parents and/or may include a spouse.
Out of pocket expenses other than the lawyer’s fees. These expenses may include Court fees, process server fees, faxes, photocopies, and appraisals.
Specifically, financial disclosure is an important tenet in family lawand includes “full disclosure”. It involves showing the other side a complete list of one’s assets, debts, liabilities, and expenses through a Financial Statement. Disclosure serves to make sure that many issues are taken care of including but not limited to child and spousal support and equalization.
Division of Property
Is the process of dividing a married couple’s assets and debts after their separation.
Assets and/or debts that have been accrued by both spouses between the date of marriage and the date of separation are to be split equally.
Generally, the spouse with the higher number pays half of the difference of their Net Family Property to the spouse with the lower number. This is known as equalization.
Depending on the facts of the matter, sometimes the parties could also request an unequal division of the Net Family Property.
Common-law spouses, while not entitled to equalization, may be entitled to a division of family property.
This is the legal termination of a marriage.
Divorce – Joint
This occurs when both spouses file the Application for divorce jointly.
Divorce – Simple
This generally refers to an Application where a is asking for a divorceorder only.
Abusive behaviors and/or actions used by one person to control or injure their partner. This may be in the form of cruelty (see definition above) or abuse (see definition above).
This, as the name suggests, is getting a benefit twice from the same asset.
For instance, in regards to spousal support, when an asset is already equalized between the parties, but later on generates income, the spouse who owns that asset may become liable to pay spousal support based on that income.
When you take an action to force the other party to comply with the Court Order.
Refers to a right to something. For instance, in regards to Equalization, married spouses have a right to the division of property.
Any assets and/or debts that have been accrued by both spouses between the date of marriage and the date of separation is to be divided equally.
The spouse with the higher number pays out one-half of the difference of their Net Family Property to the spouse with the lower number. This is done in order to equalize the value of each spouse’s Net Family Property.
These are documents and/or witnesses used to prove a fact. Examples of documents may include bank statements, report cards, medical reports etc.
Refers to a right given to one person to occupy a home, while the other party is not allowed on the property.
Generally, both spouses have an equal right to occupy the matrimonial home regardless of who is on the title until the divorce is finalized or an Order is made regarding the matrimonial home. However, one spouse may apply for exclusive possession if living in the same house breeds too much conflict or there is domestic violence.
Refers to signing and or commissioning a document.
A piece of evidence (see definition above) generally attached to a Court document to prove a fact. For example, in an affidavit, when a person refers to what was said on a certain date, they may add an email from that date as proof of what was said. This will be attached as an Exhibit to the affidavit.
A factum is a written argument provided to the Court before they listen to the oral arguments in relation to a Motion, Appeal and/or Trial.
It usually contains an introduction, statement of law, statement offacts, and analysis, or legal arguments as well as the Orders being requested from the Court.
Family Responsibility Office (FRO)
Is an agency of the government that oversees enforcing support payments (child and spousal) pursuant to a Court Order or a Separation Agreement.
Once FRO is involved in a matter, they can actively collect support payments directly from the Payor.
Refers to various forms of abuse (see definition above) or cruelty (see definition above) inflicted by a person with whom they have an intimate relationship. This may include children.
An Order granted by the Court settling the matters contained withinit. For example, a Final Order may be granted with respect to spousalor child support. A final order may always be varied by filing aMotion to Change, Consent to Motion to Change, or by Appeal.
This is a form summarizing a party’s financial situation.
It usually includes a breakdown of a party’s assets, liabilities and/or expenses It is an incredibly important document which may be used as a basis for negotiating the resolution of issues pertaining to division of property, child support and spousal support.
There are two kinds of financial statements in family law in Ontario:
1. Form 13 which is completed for support issues only; and
2. Form 13.1 which is completed when there is an equalization claim and or child or spousal support issues.
Refers to a parent limiting the other parent’s parenting time, interaction and or communication with the child.
Is a transfer of property from one person to another without the expectation of repayment.
Gifts are usually excluded during the division of property. This means that they are not added when calculating a party’s net worth.
The Hague Convention is a document signed and ratified by multiple countries to protect children and their families. For example, if a child who ordinarily resides in Canada, is taken to Australia without the consent of biological parents. Pursuant to the Hague Convention, Australia has a duty to return this child to Canada.
Are everyday items such as furniture, appliances, linen, electronics, cutlery. They are generally considered to be jointly owned by both spouses and are split equally after the divorce.
Independent Legal Advice
Refers to each party acquiring their own legal advice from different or separate lawyers.
Indexing is the percentage change in the Consumer Price Index (CPI) for prices of items since the previous year. The CPI will vary depending on is the jurisdiction. For example, the CPI of Toronto will vary from that of Oshawa.
The Court may make an Order for spousal support payments to be indexed, which means that they may provide that the amount paid be increased on a yearly basis by the indexing factor.
The Family Law Act expressly excludes child support from indexing.
Refers to a temporary Order given by Court before trial or a Final Order.
This means two parties owning an asset together with rights of survivorship.
Is a Latin phrase meaning “in place of a parent”. If a person is said to have stood in loco parentis, it means they took the responsibility of being a parent for that child[ren]. This term generally applies to stepparents.
Many times, support (child or spousal) is paid monthly. However, parties may elect to pay or receive a lump sum payment for either child or spousal support. For example, only, a Recipient may choose to receive a lump sum payment of $50,000.00, for spousal support at once instead of receiving $400.00, per month.
Material Change in Circumstances
Refers to something that was not contemplated by the parties when they entered into an Agreement or obtained a Court Order.
It allows the Court to change a Final Order. What classifies as a material change could be defined by the parties or may be inferred through case law. An example of a material change is if a child begins living with the support Payor. This changes the child support obligations for the support Payor such that the Payor might become the support Recipient.
Pursuant to the Family Law Act it is a property in which both spouse(s) have an interest and it was ordinarily occupied as a family residence at the date of separation. It receives a special treatment such that the value is never deducted from a spouse’s Net Family Property (NFP) as a date of marriage asset, even if a spouse owned the property at the date of marriage.
Also, both parties have a right to stay in the matrimonial home until a final order or agreement is made, regardless of who the titled owner of the property is.
Is a form of Alternative Dispute Resolution (see definition above). Both parties meet with an impartial third party who assists them toreach an agreement.
Is a neutral third party who conducts a Mediation.
Minutes of Settlement (MOS)
This is a document signed by both parties setting out the agreement reached between the parties. Partial Minutes of Settlement refers to settlement of some of the issues in a matter.
A Court proceeding before a Judge where a party requests the Courtto make a determination on a specific issue before trial.
Motion to Change
Is an originating process where a moving party is seeking to vary a previous Court Order or an Agreement.
Net Family Property (NFP) Statement
Is a financial statement to calculate the parties’ Net Family Propertyand how much equalization is payable.
Notional Disposition costs
This is the amount paid when an asset is cashed out. For example, in selling a home, there may be real estate fees. Another example maybe a plot of land, other than primary residence, being sold and there are capital gains tax.
They are notional because they have no been incurred yet but the party who own’s the property is allowed a deduction for them.
Offer to Settle
Is a legal document that details a formal offer made by one party to the other.
An offer to settle could be partial such that it may only address some of the issues or it may be complete meaning all outstanding issues are outlined in detail.
Office of the Children’s Lawyer (OCL)
Is the government-funded office that represents children under the age of eighteen (18) years in some Court cases.
The OCL is not automatically involved in Court cases dealing with decision-making responsibility and parenting time. They must agree to accept a case. The OCL has clinicians and lawyers across the province. They prepare reports about a child’s needs, views and wishes.
This is an Order that guides parenting and may deal with the following issues:
1. Decision-making responsibility (see definition above); and
2. Parenting time (see definition above)
Refers to a written agreement between the parties that outlines issues surrounding decision-making responsibility (see definition above) and/or parenting time (see definition above).
The time that a child spends in the care of a parent. It may be on a strict schedule such as every other weekend, or on a flexible schedule. It may also be supervised or required to take place in the community.
Is a written document used by parties who are not married but have children. They are generally used to address issues of child support which may be filed with the Court and/or register with FRO for enforcement.
These are legal documents filed with the Court. They outline facts relevant to the issues and outline Orders being sought from the Court.
Is interest awarded to a party for loss of use of money for the period. In family law, it is usually calculated from the date of separation until the date the Court makes an order.
There is a general legal principle that the recipient of a monetary award ordered by the Court is entitled to pre-judgment interest.
Refered to as a pre-nuptial agreement or a marriage contract.
It is a domestic contract that enables a couple, about to be married, to dictate how their assets and debts should be dealt with in the event of separation.
Marriage contracts can be entered into even after the parties have been married.
A party may be granted the right to ask the other party or a third person questions about anything relevant to the party’s matter.
Questioning is generally conducted outside court, in the presence of a reporter who prepares the transcript.
Reconciliation is the process by which a separated couple decides to resume their marriage and cohabitation. It literally means “re-establishing cordial relations.”
Many separation agreements provide a 90-day grace period where if the parties reconcile for less than 90 days, the counting of the date of separation remain uninterrupted and the terms of the agreement stay in effect.
On the other hand, if the parties reconcile for more than 90 days and later determine to end their relationship, the clock for date of separation restarts, and the terms of the separation agreement become null and void.
The Children’s Law Reform Act defines this term as the change in the residence of a child that will have a significant impact on the child’s relationship with other people who have decision-making responsibilities, parenting time or contact.
This is the party or parties that responds to the Application served by the Applicant.
This is a remedy granted by the Court wherein a spouse (married or unmarried) whose name is not on the title is allowed to share in the value of the property. It is an equitable remedy, therefore, it is granted only if the Court decides that it is fair to do so.
Is money an individual pays to their lawyer for his or her services. It is held by the lawyer in a special bank account known as a trust account. The lawyer cannot touch the funds until he or she sends the individual an invoice. Once the client receives the invoice, the billed amount is deducted from the retainer. The client is expected to replenish the amount once it is run out.
Is a contract an individual enters into with their lawyer. The Agreement identifies the parties, the services to be provided to the client, outlines the legal fees and circumstances in which the agreement may be terminated.
Is support payment generally child or spousal, that the payee was entitled to at the time, but the payor failed to pay. They are awarded retroactively to the date that Court proceedings were commenced. The Court will go further back, if there is reason to for example, the date of the parties’ separation.
Section 7 Expenses
Also known as Extra-ordinary expenses or Special expenses. They are expenses that are out of the ordinary for the child. Ordinary expenses include clothing, food, and shelter. Section 7 expenses include extracurricular activities like daycare, dance classes or university costs. These expenses must be reasonable given the parties’ financial situation and necessary because they are in the child’s[ren] best interests.
Security for support
In some situations, the Court may order that the payor take out a life insurance policy of a certain amount as security for their support obligations. In case the payor dies, their support obligations will still be met.
This is when a spouse and/or a partner (married or common-law) decides they no longer want to continue their relationship and to cohabit.
This is a domestic contract that parties enter into after they separate to resolve all the outstanding issues between them as a result of the breakdown of their relationship.
A separation agreement may also be a partial separation agreement dealing with only some issues or an interim separation agreement dealing with the issues on a temporary basis only.
Service means delivery of a legal document. There are various forms of service of legal documents. An application, for instance, must be served by “personal service,” meaning that it must be physically handed to the person.
This is a meeting where the parties meet with a judge to explore ways to settle the issues without going to trial or settle some issues before trial. This is an important step, because if a case is not resolved at this stage, it normally proceeds to trial.
The purpose of a settlement conference includes:
• Discussing ways to solve the issues without going to trial; and
• Obtaining Judge’s views of how the Court might decide the case.
Settlement Conference Brief
This is the document submitted by both parties before the Settlement Conference, summarizing facts and outlining their arguments.
This term refers to one person owning title to a particular property.
The legal definition of a spouse is a person who has pledged to wed another person and be united in marriage. However, spouses in Ontario encapsulates both married and unmarried spouses. To fall under the definition of unmarried spouses, the parties must have been cohabiting for a period of at least three (3) years or are in a relationship of some permanence, if they are the parents of a child.
The Court may Order substituted service if the party serving the legal documents is unable to serve the opposing party personally for any reason. Seeking an Order for substituted service will allow the party to serve the documents via alternative methods such as via email, WhatsApp, Facebook, etc. It must be a method that is reasonably expected to bring the document to the other party’s attention.
Supervised Parenting Time
Is arranged if there are safety concerns about a child’s visit with their parent or during the parenting time exchanges. It provides a neutral and/or safe setting for visits between the children and a parent.
The Child Support Guidelines (see definition above) sets out how much child support a Payor parent is required to pay to the Recipient parent for the benefit of the child[ren]. The amount of child support is based on the Payor’s income and the number of children for whom they are paying the support.
This is also known as an interim order (see definition above). This is an Order granted by the Court that lasts until:
• Another temporary Order is made;
• The period of time, or event, that the order deals with ends; and/or
• A Final Order is made.
A temporary order may also be given pending the time that one of the parties completes an action.
Trial Management Conference
Is a meeting between a judge and the parties’ and their lawyers, if any, to prepare the parties for trial. The judge may discuss with the parties about their witnesses, and evidence at trial.
Trial Management Conference Brief
This is the document served and filed before the Trial Management Conference. It outlines the theory of the case, list the witnesses that each party may have and identify the time needed for trial.
Is a certified written record of a Court hearing.
Is a formal hearing in a Courtroom with a Judge to get a final resolution of the issues in the case. Each party has an opportunity to state their claims and offer defences and counterclaims.
The judge at trial is different from the judges at the conferences. In Ontario, family law trials are heard only by a judge.
Is a package of documents organized by a party or their lawyer that contains everything the Judge will need to see in order to grant a Final Order on the outstanding issues. Pursuant to the Family Law Rules, the applicant must serve and file a trial record thirty (30) days before the start of the trial. The Respondent may serve and file and add to the trial record, no later than seven (7) days before the trial.
This means financial hardship on the part of a payor. Generally, it implies that the payor is unable to meet up to their support obligations because they cannot afford it.
Unjust enrichment occurs when a party benefits unfairly and to the detriment of another under circumstances that the Court deems unjust.
Variation of Order
Also referred to as Motion to Change (see definition above) where a moving party brings an application seeking variation of a Final Court Order or an Agreement, based on a material change in circumstances.
Is a legal document outlining a person’s instructions to dispose off their property after their passing.
Refers to without any loss or waiver of rights or privileges. This is a designation that may be included in written communication from one counsel to another when engaging in settlement conversations.
It is inserted to ensure that a person’s rights and privileges are protected regardless of the content of the communication.
Witness to Signature
A witness is an individual who is of the age of majority and is of sound mind and is not a party to the document being signed. Many legal documents require a witness to signature including Separation Agreements and Powers of Attorney.
So, I realized that although the Cut blog posts are supposed to be about TV shows and movies, I have unwittingly focused on TV shows. In my defence, I prefer TV shows to movies. I like continuity.
But I did say movies AND tv shows, so for this month, we are going to focus on a movie. When I started this blog, I wrote out a long list of TV shows and couples from TV shows that I will focus on, but I realized, I had literally no movies. So then, I asked for opinions on movies with separating couples, and one of my friends suggested Waiting to Exhale. So, I watched it, because, I mean, Angela Bassett and Whitney Houston, and I was not disappointed. It follows four best friends, all dealing with life, love and everything that adulting brings.
Our couple of the month, Bernadine and John, had been married for 11 years. John walks in one evening while Bernadine is getting ready for an event at his workplace. Bernadine doesn’t really want to go to this event but is going anyways to make her husband happy. This man then walks in and is like, “You don’t have to go tonight,” which makes her happy because she thinks she’s off the hook. And then he tells her it’s because he is going with his new girlfriend, who is his bookkeeper. What a truly awful and cruel way to tell someone you’re ending your 11-year marriage to them. At one point, she takes all his things, puts them in a car and sets them on fire. It’s funny because I had seen that as a meme for a long time (you know, the one, white shirt open, cigarette in hand and car bursting into flames in the background), but it was nice to have some context to such a cool-looking picture. Anyways, suffice it to say the marriage was over. It became a situation of who could hurt who the most. She sold his belongings for a dollar each, and then he drained their bank accounts.
So, as we do, let’s examine what would have happened if they were getting divorced in 2022 Ontario.
Infidelity is actually a valid ground for divorce in Canada, so Bernadine can seek a divorce on this ground.
Parenting Time and Decision-Making Responsibility
There is nothing in the movie to show that either parent is a bad parent or that parenting time with either parent is not in the children’s best interests. Bernadine, however, is very hurt by this whole situation and may attempt to ask for sole decision-making responsibility and primary parenting time. John may also decide to get a section 30 assessment. A section 30 assessment is usually undertaken when the parties cannot agree on the best for the child. John could claim that Bernadine has mental health issues (I mean, to be fair to the cheater, she did burn his car down and sell all his belongings for a dollar each. Oh yeah, and she slapped his mistress) and that he fears for the safety of the children. In a section 30 assessment, the assessor meets with both parents and the children to gain an understanding and assess (haha) the situation and report back to the Court what they have found.
Realistically, Bernadine has been the primary caregiver for the children, so it is not far removed from the realm of reality that she will be granted sole decision-making responsibility and primary parenting time. It is also possible that the parenting time and the decision-making responsibility will be shared.
As we have come to find out from the other blogs, child support depends on who the child lives with and the income of the payor. Most likely, however, Bernadine will be getting some form of child support. She is a stay-at-home mother and, as such, has no income. She, however, now has an obligation to be self-sufficient, so maybe she can finally start that catering business. When you google the average salary for a CEO of a technology company, it is $214,940. Using this number, John’s child support payable monthly would be $2,856.00. Bernadine has no income, so there will be no offset amount, and he will still pay this even if parenting is shared. In the unlikely scenario that John is granted primary parenting time, there will be no child support payable as Bernadine has no income.
Bernadine will almost certainly be entitled to spousal support on a compensatory and needs basis. She put her career on hold to raise the family while John climbed in the ranks in his career. She is educated and has a master’s degree but has not used it for the 11 years since she was married. The marriage was also not a short-term marriage (short-term marriages are under five years). Spousal support is based on entitlement, quantum and length of the marriage.
The Spousal Support Advisory Guidelines (SSAGs) have three points for the quantum of spousal support; low, mid and high. Depending on a number of factors, a party may be entitled to one of these (or less or more). I do not think Bernadine would be entitled to anything less than the midpoint of the SSAGs. She may even be entitled to the high point. This means that Bernadine would get (based on John’s income of $214,940), between $4,035 (midpoint) and $4,847 (high point) monthly in spousal support.
Equalization and Division of property
A financial statement is usually drafted in matters involving money. Both parties have an obligation to disclose their financials. Every Family law judge and lawyer will tell you that disclosure is the cornerstone of family law. John will have to disclose all his assets, including the ones from the bank accounts he drained and has hidden away. Both sides’ assets will then be totalled (at the date of separation) and divided equally. We know they owned the matrimonial home, a BMW, a Porsche and a Jeep Cherokee. They probably owned more because we see in the movie that they are very rich, but we cannot do a proper equalization calculation because we do not have the figures.
On the bright side, at the end of the day, Bernadine lived happily ever after and found a person to set her world on fire (pun very intended).
So, the creator of one of my favourite rom-com, Crazy Stupid Love, decided to make a show, and it’s amazing. The show This Is Us is centred around three siblings and their parents. The parents, Jack and Rebecca Pearson, had triplets Kate, Kevin and Kyle. Kyle died shortly after birth, and Jack and Rebecca decided to adopt Randall, a baby who had just been abandoned by his father and had been born on the same day as the triplets. It’s pretty cool because the show actually jumps from present to past to future and back again.
Our couple of the month is Kate and Toby. Kate is one of the triplets and the only girl. Dad’s favourite. Kinda hard life. One brother was super smart, and another was very good-looking and became an actor. She was kind of always the forgotten child. I never really liked Kate, honestly, until the last two seasons of the show. I thought she was annoying, but to be fair, I thought all the Pearson kids were annoying. Kate and Toby had met at a weight loss support group and immediately connected. They got married and had two children, and then COVID happened. Toby lost his job and then became a stay-at-home dad. And then, he got another job and had to move to San Fransisco. This strained their relationship, and the cracks started to show. Eventually, the cracks got too wide, and they realized (well, at least Kate did) that they would be better off getting divorced.
Although Kate and Toby lived in Los Angeles, as we do, we are applying 2022 Ontario law here to see what issues would have popped up during their divorce.
Big THREE (actually, four) issues to be dealt with
There are at least four issues that may have resulted in Pearson v. Damon if it had happened in Ontario.
Decision-Making Responsibility and Parenting Time
The courts in Ontario tend to favour a child-focused and centred approach to decision-making responsibility and parenting time. This was previously known as custody and access, respectively. A decision will need to be made regarding whom the two children of the marriage, Jack and Haley, will live with and who will have decision-making responsibilities. If the matter had proceeded to court, the judge would have decided based on what was best for the children. From what we can tell, they both seem like good parents (ignoring that their joint carelessness once made their blind toddler leave the house, walk to the park, and seriously injure himself). They are both involved heavily in the children’s lives, and at one point, each of them has been the primary caregiver for the children. They would likely end up having equal parenting time and equal decision-making responsibility, seeing as Toby has now moved back to Los Angeles. The fact that Haley is adopted has no bearing whatsoever on Kate and Toby’s decision-making responsibility and parenting time. Her legal parents are Kate and Toby and not her birth mother.
Google states that the average salary for a teacher in Los Angeles is $54,000. Toby was an IT guy who had just gotten a fancy new job in San Francisco. The average salary for that is $154,607. If Haley and Jack live with Kate, then Toby will have to pay child support of $2,132.00 per month. If they lived with Toby, then Kate would have to pay child support of $823 per month. If parenting time is shared, then Toby will have to pay something called a set-off amount which is the difference between what he would pay if the children lived full-time with Kate and what Kate would pay if the children lived full-time with him. In this case, it will be $1,309.00.
Section 7 Expenses
There will also probably be a few section 7 expenses. Section 7 expenses are extraordinary expenses. They usually include expenses that are not included in regular child support. Examples include extracurricular fees, health-related expenses e.t.c.
Kate and Toby’s son Jack is blind and, as such, needs special equipment. Toby even refers to these pieces of equipment in a fight with Kate. Jack also goes to a special school for blind children. We do not get to know Haley, but maybe she might get involved in some extracurriculars as well. Ballet, soccer, maybe even Karate. These expenses may likely be split proportionately to each parent’s income. So, for example, in this case, the proportions will be Kate at 25.89% and Toby at 74.11%.
For example, assuming the section 7 expenses add up to $10,000. Toby will be entitled to pay $7,411, and Kate will be entitled to pay $2,589.
Kate may be entitled to spousal support. She stayed home for a large proportion of the marriage to support her family. While Toby was a stay-at-home dad for a while, Kate put her career on hold for much longer to enable Toby further his career in San Francisco. Spousal support is based on eligibility, quantum, and duration (which, in this case, is six years). The table amount for spousal is also usually calculated for low, mid, and high figures. If found to be eligible, Toby will have to make spousal support payments to Kate, seeing as he earns more.
Even though Kate gets remarried to Phillip, this will not automatically terminate Toby’s spousal support obligation.
We know that the matrimonial home is where Kate lives in Los Angeles, and it is probably the parties’ main asset. Come to think of it, with this new job that Toby has. There is probably a good pension, maybe some stock options.
As with most of the other couples we examined, we do not have enough information to carry out an equalization exercise.
There are a few couples in this is Us with interesting stories so we may visit a few of them in upcoming posts. Also, #justiceforMandyMoore. She was robbed of those Emmys. Every. Single. Time.
Recently, my boss had an interview with BuzzFeed on non-obvious red flags to look for early in a relationship. She asked for suggestions, and obviously, everyone in the office had an opinion. Strong ones.
I also had a few friends and family members chips in, and so we decided to collate these opinions and put down a list of the top 17 red flags to look for early on in a relationship/situationship because 17 is a fun number.
“We don’t need a title to define us.”
Yes, we do. Next.
This is kind of a no-brainer and applies to all genders. Wanting the other person to always pay for stuff can be a problem. It also applies not only to financials. Are your conversations always about them? Are your activities a? lways centred around them
Are they the kind of person who is like oh, you texted me at 6:14 pm, which is 9 minutes and 6 seconds after I texted you, so I’m going to wait 18 minutes and 12 seconds to text you back? Then red flag. I mean, we all have our petty moments, but this extra stuff is not cute.
Lack of Ambition
A lawyer in our firm put it perfectly when she said she doesn’t care that they are not where they need to be right now; the question is if they have a plan to get there.
Telling you what to wear, what to eat, who to be friends with etc. That’s a problem.
“You’re not my usual type, but…”
Go and meet your usual type then. I mean, why are we here?
Not having a social media presence
It’s 2022. What are you hiding?
Having too many followers on social media
You’re not Drake. Why do you have so many followers?
How they treat people, they are not in a relationship with
I blame rom-com. A person being nice to only the person they are dating is a red flag. Are they meant for waiters? Workers at the mall? Etc.
Lack of communication/ Lack of understanding of boundaries
I think it is very weird to be in a relationship/situationship with someone and be able to go days without speaking to them. On the flip side, you can’t expect a call or text every hour. Boundaries are important, but so is communication. Find a balance, and don’t ask people for their passwords after date number 3.
How do they talk to you? How are they when you tell them something you’re excited about? When you tell them Bridgerton is the best show you have ever seen in your life, do they tell you that’s stupid? Do they undermine your feelings?
How they talk about their exes
Is their ex all they can talk about? Does it seem like everything that happened in the old relationship was the other person’s fault and never theirs? Or do they compare you to their ex? All red flags.
Do they leave the room every time they make a phone call? Unless they work for the CIA, red flag.
Imposing their love language on you
It’s like this. Everyone has different love languages. This is obviously fine. The problem arises when a person insists on showing love to the other person in a way that is not their love language after they have been corrected. To clarify, I’ll give an example. If a person’s love language is quality time and they have told their partner this, but the partner just insists on buying gifts and not spending time with them, this can be a red flag.
“You’re too good for me”
I’ve found that people take this as a challenge rather than how it is intended: a warning.
You should be with someone who is very chalant about you.
Putting their problems on social media
It’s the 21st century. It is not surprising that so many things are social media-focused. It can be a red flag if, after every disagreement, they take to social media to talk about how upset they are or how you may have done them wrong.
I hope this has been illuminating, and I’ll leave you with the words of the great Roy Kent, “You deserve someone who makes you feel like you’ve been struck by lightning—don’t you dare settle for fine!”
I love LOVE. This equates to me loving romance tv shows and movies.
As a big romance fan, it’s not really a shocker that I love the show, Outlander. I mean in one episode, Jaime tells Claire, “When the day shall come, that we do part… if my last words are not ‘I love you, ye’ll ken it was because I didn’t have time”.
I mean, wow.
Background of the show – It starts off just after the end of the second world war. Claire was a nurse for the British Army, and her husband, Frank, was an officer for the MI6 during the war.
Now, here is where it gets interesting. They decided to go to Scotland for a second honeymoon of sorts. They stay in an inn in a city called Inverness, and there are these special stones that are famed for being magic. Claire goes to the stones to collect herbs and flowers and touches the stones, and is transported 200 years before 1743. She is saved by members of the McKenzie clan as she is about to be hurt by Captain Jack “Black Jack” Randall, who is the main villain of the show. Terrible, terrible guy. Truly, he is the worst. As if things weren’t weird enough, Black Jack also happens to be Frank’s ancestor and has the exact same face as him! Anyway, Black Jack is upset that Claire was saved and tries (and mostly fails) to try to harm her. The warrior chief of the clan MacKenzie, Dougal, realized that the best way to protect Claire was by her becoming Scottish. The easiest way for that to happen is for her to get married to a Scot. Enter James Alexander Malcolm MacKenzie Fraser (a.k.a. Jaime). Jaime is Dougal’s nephew. He’s young, handsome, brave, and incredibly headstrong. They actually turn out to be an incredibly good match, and they fall very deeply in love. It’s very cute. And then they live happily ever after.
No, they don’t.
But actually, maybe, they do because, full disclosure, I am not actually fully caught up.
Claire’s situation is… unique for many reasons. This woman was able to use stones as a teleportation device to travel from century to century. Her biggest enemy is the ancestor of her first husband, and now, in addition to said first husband, she’s also now married to a man who is technically 234 years older than her. Taking liking older men to the next level. It is interesting stuff.
As we do, we are going to examine the validity of these marriages using the 2022 Ontario family law.
Eenie Meenie Miney… Claire
Claire is technically married to two men, Jaime and Frank. Bigamy could be one of the reasons for the annulment of a marriage. There are two ways to look at this:
If we think that time is linear, Frank and Jaime do not exist in the same times, and everything occurs in order; Claire is married to Frank in the 20th Century and to Jaime in the 18th century, then there is no bigamy. Frank is not born at the time that Claire marries Jaime, and by the time Claire marries Frank, Jaime is long dead.
On the other hand, from the way this show operates, time does not seem to be chronological. Does everything seem to be happening kind of at the same time? So, the timeline of the 1900s is happening at the same time as the timeline of the 1700s. If we look at it from this perspective, then her marriage to Jaime is voidable and can be annulled. It would mean that she is married to both Frank and Jaime at the same time.
The Wee Bairn
So, after being married for like three years, there is this giant war that happens, the Battle of Culloden. Claire is from the future, so she explains to Jaime the significance of this war and how it changed the lives of the Scottish highlanders and basically ended life as they know it. They try their best to do whatever they could to change history, but this didn’t work. At the very last minute, Jaime decides that pregnant Claire needs to go back to her time so that she and the baby can be safe. Claire obviously tries to fight him on this but eventually goes along with it.
Back in the 1940s, Frank had been looking for Claire for three years, wondering where she had been. She explains it, and bizarrely enough, he believes her. They then raise the child together and name her Brianna. They never fully recover from the separation, though, and by the end, Frank informs Claire that he wants a divorce. He dies very shortly after this.
Decision-Making Responsibility, Parenting Time and Child Support
If Frank had stayed alive and the divorce process had been adhered to, the main issues will probably be property, child support, equalization and maybe spousal support. Brianna, at this point, is 17, and no court will really make her stay with one parent or the other. It will fully be her decision what parent to live with.
Brianna is still a child of the marriage because she is going to university. According to Ontario law, child support obligations do not automatically end when the child turns 18. If the child is unable to become self-supporting because of disability or education, then they are still considered a child of the marriage. Claire is a surgeon, and Frank is a university professor. According to a quick google search, on average, surgeons make $158,597.00 and university professors make $108,414.00. If Brianna lives with her father full-time, child support will be payable by Claire in the amount of $1,361.00 per month. If Brianna lives with her mother, child support will be payable by Frank in the amount of $976.00 per month. If parenting time is shared, then Claire has to pay a set-off amount to Frank of $385.00 per month.
Special and extraordinary expenses, aka section 7 expenses, will be divided for the parties as 41% and 59% for Frank and Claire, respectively.
Equalization and Spousal Support
Spousal support is based on entitlement, the length of the marriage, and quantum. Claire may be entitled to spousal support. She had to take time off to have Brianna and spent part of her marriage supporting Frank. She even moves to America with him to start his job as a professor. Quantum, however, may be 0. This is because Claire makes about $50,000 more than Frank does.
Does it not appear that Frank has a strong basis for entitlement, not spousal support, except maybe he relied on Claire’s income during the marriage and could make a needs-based claim?
For equalization, we don’t have actual figures on what Frank and Claire own so equalization will take too much guesswork.
In the meantime, I need to catch up on this show and see if it does end happily ever after. Hopefully, it’s not one of those that gets boring after the third season. I’m looking at you, Community.
The mother and father married, and after an incident of domestic violence, the mother moved from Alberta, where she lived with the father, to Prince Edward Island. At the time, the father did not realize that the mother was pregnant and did not know of the child’s existence until the child was about five years old when the Director of Child Protection (the “Director”) contacted him to inform him of the proceedings. The mother had issues raising the child on her own as she struggled with significant mental health issues. Her mother moved in with her to help when the child was about three months old. The grandmother supported them financially and provided care to the child.
In August 2017, the mother’s condition got worse, and she barred the grandmother from seeing the child. A few months later, the Director believed that the mother was not able to care properly for the child, and a court granted temporary custody to the Director for three months. When the grandmother became aware of what happened, she became a foster parent, and the Director entered into a foster parenting agreement with her and placed the child in her care. It was around this time that the Director told the father about the child’s existence. The father took a parenting course and began to prepare to have the child live with him. The grandmother informed the director of the abuse allegations. Regardless of these allegations, the director allowed the father to have parenting time with the child going from supervised to unsupervised overnights in 2 weeks. The grandmother then applied to be designated as a parent, which was granted. The day after it was granted, the director ended the foster parent arrangement with the grandmother and took the child away from her without notice and placed him with foster parents that he did not know. The director allowed supervised visits with the grandmother for 4 hours per week. The Director claims that this was because the grandmother had been saying negative things to the child about the father.
A month into the new arrangement, the director allowed the child to go to Alberta to visit his father. The child never returned to P.E.I. The child had limited access to the grandmother, only video calls for six months. When the director finally allowed the grandmother to visit, he placed several restrictions on the visit, including having only supervised visits and denying her overnight stay.
The hearing judge noted that the grandmother was willing to put aside any animosity she felt towards the father and help foster a relationship between the child and his father. On the other hand, the father did not seem willing to want to help the child foster a relationship with his grandmother and his half-brother. She also noted that the Director made a lot of mistakes in terms of the decisions he made with regard to the matter. She granted custody to the grandmother.
The Court of Appeal concluded that the hearing judge considered an irrelevant factor (the behaviour of the Director. The Court of Appeal also concluded that as the natural parent, the parental preference favoured his custody claims. They reversed the decision and granted custody to the father. There was a dissent, however, who believed that the hearing judge decided the matter correctly and deference should be given to the hearing judge. The matter was then appealed to the Supreme Court.
The Supreme Court asked three questions:
When can an appellate court intervene in determining the best interests of a child?
Did the hearing judge err in her determination of the child’s best interests? 7
How much weight should be given to the fact that a parent is a biological parent in terms of a child protection matter?
The Court held that the case of Van de Perre v. Edwards, 2001 SCC 60,  2 S.C.R. 1014, at para. 11, citing Hickey v. Hickey,  2 S.C.R. 518, at para. 12, should be followed. It states that an appellate court should not intervene in a matter unless there has been “a material error, a serious misapprehension of the evidence, or an error in law.” The court held that significant deference should have been given by the Court of Appeal to the hearing judge.
The Court held that the assessment for the best interests of the child by the hearing judge was thorough in addressing the sum of the parts.
The Court agreed with the grandmother’s assertion that the Court of Appeal overstates the importance of the father’s biological ties to the child. The Court of Appeal concluded that biological parenthood was very important, and the courts should consider it a tie-breaker when a parent and non-parent were otherwise equal. The Supreme Court disagrees with this notion. It is one of many factors that should be considered; however, no one factor should be placed above the other. The most important thing is the child’s best interests.
The Supreme Court unanimously granted custody to the grandmother, in line with what the hearing judge held. The Supreme Court held that the Court of Appeal erred in its analysis and should have deferred to the hearing judge.
Game of Thrones is one of the most-watched tv shows of all time. It’s beautifully written tv (except that last season that we have all decided, as a society, to forget about). It has a lot of twists and turns and a couple of beheadings. Oh, and we can’t forget the incest.
To give a quick summary of the show, it has dragons and icemen. There are seven kingdoms and basically, the main families are trying to play games so that they can get, get back or retain the throne, hence the game of thrones. And there are other powerful families taking sides as it favors them. It is a lot of information and a lot of characters with incredibly weird names (I mean, what the heck type of name is Stannis?).
Anyways, now onto our couple of the month; Cersei Lannister and Robert Baratheon. Robert was the King of the Seven Kingdoms (aka Westeros) and the head of House Baratheon. He was married to Cersei Lannister, the daughter of the richest man in Westeros, and they had three children together. Ned Stark, the Lord of Winterfell, and the hand of the King (kind of like a right-hand man) discovered that the three children of the marriage were actually not biologically Robert’s, and the children were actually fathered by Jaime, her twin brother (dun dun dunnn!). Ned, of course, decided to tell Robert because that’s his bestie. But, before he could do this, Robert died (read as: had his death caused by his wife dun dun dunnnn!!! again).
Now, keep in mind that this show is set in the 16th and 17th centuries or thereabouts, so divorce is very frowned upon, especially if you are the King. Also, the king makes all the laws so it would be his decision on what to do. So, if Robert had stayed alive, likely what would have happened is that Cersei and Jaime would have been prosecuted for adultery (even though Robert himself, had several children outside his marriage, can you say double standards?) and incest, and thrown in a dungeon. The children will likely just have continued to live in the palace with him.
We are however approaching this from a point of view assuming Robert did not die and applying the 2022 Ontario law. In the matter of Lannister v. Baratheon, there are a number of potential issues, all dealt with below.
Dracarys… I mean divorce
This would be pretty straightforward. They would likely get a divorce based on the fact that Cersei had been unfaithful in her marriage. Adultery is one of the three grounds of divorce in Ontario. The other two are separation for a year and cruelty.
Parenting Time and Decision-Making Responsibility
The children are Joffrey, Myrcella, and Tommen who are aged 12, 9, and 8 respectively. Even though Robert is not the biological father of the children, he raised them since they were babies and is even unaware that they are not biologically his children. Parenting time and decision-making responsibility are always made on the basis of what is in the best interests of the children.
The fact that Robert is actually not their biological father does not preclude him from paying child support because he has been standing in place of a parent since they were born. One of the definitions of “child” in the Family Law Act of Ontario is a person whom a parent has demonstrated a settled intention to treat as a child of their family. Robert can go to Court though and the Court will decide if he is a parent by considering what is best for the children.
Google doesn’t really have an average salary range for the King or Queen of Westeros. I mean these people have crowns made of solid gold. They are from two of the most powerful families in Westeros and while the show is focused more on power than wealth, it’s pretty difficult to have power without wealth.
Depending on who the children live with, the other parent will pay child support based on their income. And if the children live with both parents, then the higher earner will pay a set-off amount to the lower earner.
Section seven expenses are special and extraordinary expenses which include extracurricular activities. In this situation, I do not believe that there are any section seven expenses.
Child support also, contrary to popular belief does not always end when the child turns 18. If the child is unable to become self-supporting because of a disability or if they are still in post-secondary, the parents still have an obligation to support the child. In this case, none of the children have any disabilities and post-secondary education did not really exist. Joffery’s plan for adulthood was probably just to wait till Robert dies so that he can become king.
Spousal Support and Equalization
Spousal support is based on the length of the marriage, entitlement, and quantum. Cersei may be entitled to spousal support. She had to take time off to have the children and spent her whole marriage supporting Robert in his work as ruler of the Seven Kingdoms. As has been mentioned above, we are not entirely sure of either party’s net worth or their earnings so the quantum will be impossible to calculate here. The same is true for equalization. It will however be an interesting exercise to calculate equalization, with the division of the palaces and all the jewels and precious stones.
I’ve mentioned above that Cersei’s father is the richest man in Westeros. Keep in mind however that any inheritance would be excluded property and will not be included in the equalization payments.
Jaime’s Paternity Claims
So, we have established that the children are Jaime’s biological children. What happens if Jaime wants parenting time and decision-making responsibility? Can Cersei ask him to pay child support? What was with that weird Ed Sheeran cameo?
The children grew up with the belief that Jaime is their uncle… which he is. But, he is also their father. This obviously complicates things quite a bit. Jaime could be entitled to a contact order which will allow him to spend time with the children and keep in touch with them. However, more likely than not, he will not be allowed to have parenting time and decision-making responsibility. If he applies to be designated as a parent and it is granted, then maybe.
I hope this post was able to answer questions as to what would happen if Game of Thrones was set in 2022 Ontario (thank God it’s not) and what would happen if Robert and Cersei were to get a divorce.
Unfortunately, the answer to the most important question of how Bran became king still eludes me.
How may a court deal with a request for the sale of a matrimonial home prior to trial? Well, this case appears to show an emerging trend with Ontario Courts.
The couple separated days short of their fourteenth wedding anniversary. They have two children together (15 & 13). The parties lived separate and apart in the matrimonial home until days before this motion was brought. The Applicant/Father brought an interim motion for the partition and sale of the matrimonial home. The Respondent/Mother opposed the motion and asked that the issue of the sale be left for trial, which is scheduled to take place in Fall 2022, at which time she intends to request a time-limited order for exclusive possession of the home until the parties’ eldest child completes high school. The children reside primarily with the mother and have contact with the father on Wednesdays after school until 9:30 pm and every other weekend from Friday after school until Sunday at 7:00 pm. This arrangement was ordered on the basis of the recommendations of the assessor. A few months prior, both parties had sat the children down and promised to allow them to remain in the house. The father then moved out and brought this motion a few days after without any rhyme or reason as to why he changed his mind.
There is only one main issue in this motion; should the sale and partition of the matrimonial home be granted to the Applicant/Father at this point in time?
The jurisdiction with regards to the partition and sale of a jointly owned property is found in sections 2 and 3 of the Partition Act. It states that joint tenants, tenants in common, and all parties with interest in a piece of land in Ontario may be compelled to partition and sell the land. It also states that any person interested in land may bring an application for the partition of the land if the sale is considered by the court to be more advantageous to the parties interested.
Justice Kurtz cites Goldman v. Kudeyla, 2011 ONSC 2718, in the applicable principles and tests for the partition and sale of a matrimonial home on an interim motion. The case states that:
A property owner has a prima facie right to sell subject to any competing interest under the Family Law Act.
Does the resisting party have a prima facie case that they are entitled to a competing interest under the Family Law Act? If not, the right to sale prevails. If yes, the motion for sale is denied unless the other party can prove that the sale will not prejudice the rights of the resisting party.
This is going to be the first in a series of my monthly blog titled Cut: Ontario Family Law and TV Couples (get it? Because cut for movies and tv shows to end a scene and cut to end a marriage? No? Okay, let’s move on. The name stays though). Here I will be looking at couples from TV shows and movies and how the Ontario divorce laws will apply to their divorce/separation.
ROSS AND RACHEL
A little background for the three people on the planet who haven’t seen the show; Friends is about a group of six friends in their twenties living in New York in the nineties navigating friendships, love, loss, and everything in between. It aired between 1994 and 2004. One of the show’s main plot points is the “will they, won’t they” relationship of two of the protagonists, Ross and Rachel. In the season five finale of the show, they drunkenly get married in Vegas. They end up getting a divorce because they cannot qualify for an annulment. Although this show takes place in the Big Apple, we will apply the 2022 Ontario law here and see if they would have been eligible for an annulment and what the process would have (probably) been like if they got divorced in Ontario.
To Annul or not to Annul?
The judge in Friends refused to give Ross and Rachel an annulment because they had a previous relationship. First, let us take a few steps back- what is an annulment? This is the process whereby a court determines a marriage to be null and void. The circumstances where an annulment will be granted in Ontario are incredibly limited. They are:
If one spouse was already married at the time of the marriage.
If one spouse was not privy to the fact that the ceremony was actually a wedding.
If the marriage cannot be consummated. This applies if the spouse cannot consummate the marriage as a result of a physical or mental inability that the other party was unaware of at the time of marriage. A refusal to consummate is not a ground for annulment.
If the spouse has no mental capacity to understand what a marriage is.
If the spouse was so intoxicated that their consent was impossible to obtain.
If a spouse was underage and there was no parental consent.
The marriage was fraudulent or obtained under duress.
If the spouses are too closely related either by blood or adoption.
In Ontario, this annulment would have probably been granted. The fact that they had previously been in a relationship will have no bearing on the fact that the marriage was null and void. Both Rachel and Ross were incredibly drunk. They did not even realize they had been married until after the other friends reminded them. They were definitely not in a position to be able to give proper consent to get married.
I’ll be there for you- Not!
There are probably no corollary issues that will be heard in the matter of Geller v. Green. Equalization cannot take place; they were married for a few short weeks. Equalization is calculated on the basis of the date of separation’s net worth minus the date of marriage’s net worth. No one gained anything extra in that time. Now, if they had maybe bought a house in that time, then maybe. They also had no children together (not yet, anyway).
BUT… for argument’s sake, let’s say the couple was married for more than a few weeks, and their daughter, Emma, had been born at this time.
At the time of the marriage, Ross was a professor of Paleontology at New York University. A quick google search shows that the average salary of a professor at NYU is $153,980.00. Rachel was a marketing executive at Ralph Lauren. Another quick google search shows that executives at Ralph Lauren earn an average of a whopping $392,878.00.
In terms of property, there really would not be any issues. Neither of them owned any real property.
Emma lived with Rachel. This would mean that Ross would have had to pay child support to Rachel. The table amount would be $1,328.00 per month, based on his income of $153,980.00. If Emma lived with both Ross and Rachel equally, then Rachel would have to pay something called a set-off amount. This means that child support will be calculated on the basis of both their incomes and then the higher-earning parent pays the difference. Here, it is Rachel, and she would have to pay $1,720.00 per month. If Emma lived only with Ross, then Rachel would have to pay child support in the amount of $3,048.00 per month based on her income of $392,878.00.
Since I don’t actually have figures on what Ross and Rachel own, equalization in this matter would take too much guesswork. It will, however be Ross’s whole net worth and then Rachel’s whole net worth, and half of the difference will be given to the person with the lower net worth by the person with the higher net worth.
Okay, let’s use numbers.
Say Ross is worth $2,000,000.00 and Rachel is worth $3,000,000.00. The difference is calculated, which will equal $1,000,000.00, and then half of that ($500,000.00) will be given by Rachel to Ross.
Now, this is very simplistic. There will be deductions for date of marriage assets and/or debts, contingent or notional taxes, and possibly excluded property.
This is calculated on three levels: eligibility, quantum, and duration. The table amount for spousal is also usually calculated for low, mid, and high figures. If found to be eligible, Rachel will have to make spousal support payments to Ross, seeing as she earns more.
I hope this gives some insight into how the relationship, more importantly, the breakdown of one of the most beloved relationships on TV would have played out in 2022 in Ontario.
Enduring conflict and tension within your family is never easy. Whether you are dealing with a divorce, or a complex matter concerning parental rights, parenting time, and decision-making, you are bound to feel drained and anxious during this time of unease. You are putting resources such as time and money to try and resolve the issues, but your mental well-being may also be drained. Often, mental well-being is pushed to the side, but don’t worry! We are here to help.
Whether you are the Applicant in a case of parental rights, or a Respondent in a case of divorce, we at AP Lawyers understand that you have a difficult road ahead. However, there are a few ways that you can help yourself and your loved ones to ensure that your mental well-being is taken care of along the way.
We know that it is not always possible to remain on amicable terms with a spouse or loved one during a family law matter, but there are still ways to ensure that important relationships can thrive through the tension brought upon by a conflict.
For cases involving children, parents, as well as our team at AP Lawyers are fighting for what is best for our clients and the children’s well-being. However, along the way, said child may be feeling abandoned, neglected, or isolated because of the time and effort being poured into the case. It is important that kids not only know that their happiness and success are being fought for, but that they feel it as well.
This means that quality time is absolutely necessary, and there are many easy and cost-effective ways to ensure that you and your kids are bonding and maintaining strong relationships during these difficult times.
Now that summer is upon us, a perfect way to not only connect but also to get some relief from the summer heat is to visit a local splash pad or water park. Soak up some vitamin D, cool off, and spend time laughing and running in the water.
These few hours spent will not only be of great fun to the children but for you as well. Spending quality time as a family allows for some separation from the stress of the case, and for some much-needed quality bonding time.
If you have older children that may have outgrown their days in the sun, don’t worry! Grab a coffee and have a chat with your teen at the local cafe. This opens the door to some healthy communication so that your teen may voice concerns or anxieties about what’s going on. Remember we are fighting to find a solution for you and your family, and it is important that kids, especially older ones also feel heard during these conflicts, and this may be the opportunity for a much-needed catch-up.
At the end of the day, we understand that dealing with Family Law cases can be stressful and difficult for all parties involved. However, we also understand that taking care of your mental-wellbeing during these cases is extremely important to ensure that, once we have found the best solutions for your situation, you can actually see the light at the end of the tunnel – meaning that you have not burned out in the process.
So, cherish those special relationships in your life, create memories, and spend quality time when you can. We are here to find solutions to your problems and to make your family life better, and you be sure to protect your mental wellbeing along the way.
Many people mistake an excellent lawyer for one who is overly aggressive and advances the client’s position blindly. Add some theatrics, and that’s a great lawyer, right? Straight out of the TV. Well, wrong!
Here are three reasons why that’s the worst type of lawyer for you (I mean, we could have provided ten reasons but we thought a good lawyer would keep things short and simple):
Your matter would be prolonged and would be unnecessarily expensive.
You may have heard the expression, you catch more bees with honey. Well, an overly aggressive lawyer would repel the other side and the judge for sure, ruining any possibility of settlement.
It’s your life, not a freaking movie!
In contrast, a good lawyer is one that knows the law and advises you accordingly. A good lawyer would not allow you to blindly pursue a position with zero chances of success.
Think about it. Do you want to make a point, or do you want a solution? A good lawyer is always focused on solutions. They recognize that not every issue is worth pursuing. At AP Lawyers, we’re always asking – is the cost worth the benefit of pursuing this particular issue? This is a hard question that we never stop asking throughout the time that we have carriage of a file. Of course, there are times when the principle of a thing may justify advancing the issue, costs are damned. But our clients would be well aware of what they are doing and would fully understand that the cost may not be worth it. Even in those rare situations, we would keep things as simple as possible.
Speaking of simple, I remember a saying I haven’t heard in a while – keep it simple, stupid! I wish I could tell that to some of my colleagues sometimes. A good lawyer would simplify your issues. No matter how complicated a situation might appear to be, a good lawyer would be able to cut the fat and distill it down to its simplest legal basics. Why is this important, because the simpler it is, the easier it is to settle, meditate, or get a judge’s ruling on. Remember, you want solutions, not a show.
People underestimate how effective a level-headed lawyer can be. For starters, lawyers are supposed to be part of finding a solution, not simply being a mouthpiece for their clients and assuming the problem is their own. When dealing with a separation, for example, it is imperative for the lawyer to remember this it is not their personal fight. The lawyers are not the ones whose hearts are broken. They are not the ones who married that jerk. They did not have to live in the same household with that slob. The lawyers didn’t. Yes, it is incredibly difficult for our team at AP Lawyers because we have so much compassion for our clients, and we want to champion their cause, but we must step back from time to time, as good lawyers, to remember that our role is to find the best possible legal solution for our clients. That’s our role.
In the quest for getting the best possible legal outcome for our clients, a good lawyer would remain professional and civil to the other party and their lawyer. It always baffles me to find people who claim they want an amicable resolution being so antagonistic. How does that make sense? If you truly want a negotiated settlement, there’s absolutely no room for aggressive, antagonistic behaviour. It blocks every possibility of settlement. Many clients think aggressive behaviour is what good legal representation looks like, but they do not recognize that their lawyer is blocking every opportunity for settlement that there could have been.
Lastly, the best lawyer in the room is not the one who shouts the loudest. A good lawyer knows when not to speak. When your case is made, or when it’s clear you have the judge in your corner, you may risk blowing the case by speaking more than necessary. Also, if you’re dealing with another lawyer and a judge, chances are they also know the law. Shouting and posturing do not hide a weak case. It may impress your client and possibly a self-represented party, but a judge would not be fooled.
In Calver v. Calver, 2019 ONSC 7317, the judge ordered the wife to pay $81,262.47 to the husband in costs since all but one of the wife’s claims failed, and the trial was made unnecessarily complex by the number of unreasonable claims made by the wife.
The party’s relationship spanned a total of eight years. They were married for four years and lived together for four years before getting married. During this period, they bought a dairy farm as a joint venture, the husband bought two properties solely in his name, and the wife unsuccessfully underwent IVF treatments, which she mostly paid for. Tragically the parties suffered the loss of the newborn child.
The wife made claims for an unequal division of net family property, unjust enrichment, constructive trust, proprietary estoppel, loss of future income, and compensation for emotional and physical damages.
However, after nine days of trial, the wife was successful only in the claim for an unequal division of net family property. All the other claims failed and were not reasonably based on the facts.
The judge agreed with the husband’s lawyer that the trial could have been done in one and a half days if the wife did not insist on litigating claims that were unreasonable. Since the trial was made unnecessarily longer, the judge ordered the wife to pay for the extra days of trial.
Rule 57.01(1) under the Rules of Civil Procedure establishes how cost awards are determined. One factor is the conduct of the parties. The courts consider this very seriously in deciding what the appropriate costs are. If a party acts inappropriately or unreasonably in the conduct of an action, such as taking steps that unduly delay the proceeding, bringing motions that are unwarranted, or making it financially difficult for the other side to continue the litigation, then the court can award costs against that party.
It is common knowledge that costs in family law cases can be enormous, especially in highly contested family law disputes. The case of W.S. and P.I.A., 2022 ONSC 55, is an example of how outrageous costs can get. In this case, the parties racked up a total of $1.7 million dollars in legal fees and disbursement! Way more than the parties’ personal savings and the equity in their home.
What was the issue? Largely PARENTING. The parties were able to resolve child support, spousal support and equalization on the first day of trial by way of consent.
The Applicant’s Father was awarded costs in the amount of $677,610. Meaning the Respondent’s Mother must pay the Applicant’s Father $677,610 for his legal fees and disbursements. Note that this was not the total cost incurred by the Applicant’s Father.
Here’s a breakdown of the bill of costs submitted by his legal team:
Fees of the Proceeding up to Trial
Contempt Motion Fees
The breakdown above does not even include $7,000 in costs previously granted to the Applicant’s Father or costs removed by the judge as duplicative. It also does not include costs paid to his previous two lawyers or to his criminal lawyer. The cost of the parenting assessment is also not included. There were also some cost savings, given the Trial was held virtually (no fees for lawyer travel time or photocopying costs).
The judge was of the view that the Respondent took a “win at all costs” approach to the litigation, wanting to completely expunge the Applicant’s Father from the family. Ultimately, the Applicant’s Father was more successful and was entitled to his costs. As Justice McGee puts it: “Family law litigants are responsible not only for their litigation positions but also for the financial consequences to both parties of funding those positions. A former spouse who engages in “win at all costs” litigation chooses to be as answerable for the resulting litigation fees to the other side as for one’s own fees.”
I did not represent either party in this case and so do not know for a fact what happened here, but it makes one wonder. Specifically, it reminded me of a podcast I had done a while ago with my Associate Family Lawyer, Sherine Abdi, which was titled – 17 ways clients waste money on legal fees.
Negotiation, compromise, and settlement are the only means by which this kind of outrageous cost could have been avoided. An all-or-nothing/winner take all approach is a recipe for serious financial consequences. If the parties spent so much on legal fees, one also has to wonder about the emotional and mental “cost” to the children. Unfortunately, the emotional and mental toll on the children are not costs that can be quantified. Was it worth it? It’s hard to see how the answer to this can possibly be yes, even for the successful party. One can only hope the children are doing ok after all.
A monetary penalty paid directly to a spouse is an effective method to enforce the production of outstanding disclosure. In Granofsky v. Lambersky, the spouse was ordered to pay a penalty of $500 per day for each day of non-compliance, and in Mantella v. Mantella the court ordered the spouse to pay $185,000 for not providing timely disclosure. This is one of several ways to remedy persistent failure to provide disclosure.
Judges are familiar with tactics to avoid providing disclosure, and we can ask them to use a variety of methods to force the needed information. If a party delays, provides insufficient disclosure, or behaves in a manner that interferes with the obligation to provide disclosure, a judge can make an order demanding the party furnish the requested disclosure.
If the party still does not deliver the disclosure the judge has the power to:
strike out pleadings;
not make any orders for the offending party; and/or
find the party in contempt.
We can also ask the judge to make an adverse inference against the offending party and to attribute additional income for support purposes, reapportion family property, and/or impose a monetary penalty paid to the non-offending party. Failure to disclose significant assets or liabilities is also grounds to set aside an agreement, rendering it unenforceable. Under Rule 1(8) the judge can make “any order that it considers necessary for a just determination of the matter”. The primary objective of the rule is to coerce the offender into obeying the court’s judgment.
Disclosure is any relevant information that may be required as evidence. Disclosure is an essential part of the family law process, and the law requires each party to provide any relevant information requested. This duty to disclose is fundamental, immediate, and ongoing. It is automatic and does not require a court order. Without proper disclosure neither party can make an informed decision on how to decide issues in the case, and failure to provide disclosure causes unnecessary delays, adds to costs, and hinders a just resolution.
Failure to provide disclosure can be devastating to a family law case, and judges do not take lightly non-compliance with the duty to disclose. We have a variety of procedures we can use to effectively remedy failures to provide disclosure.
In a recent decision from Saskatoon’s Court of Queen’s Bench, the court dealt with whether a 13-year-old child of divorced parents should or should not be vaccinated.
Given the child’s age, her the father in this case requested that her name be confidential, the judge ruled in favor of that request.
The mother in this case, heavily opposed consenting to the daughter’s COVID-19 vaccination citing skepticism about the pandemic, and the unknown risks from the supposed dangerous and experimental vaccines.While the father believed it was his daughter’s best protection against the virus and that it overallsafe and effective.
Our very own founding lawyer Angela Princewill, commented on the outcome of the recent decision in a CTVnews segment, which drew national attention across the country, as it sparked an interesting debate; Should a 13-year-old child or any child beordered to take the vaccine? andwhat sort of considerations does the court look at in making this decision?
The judge in this case, Justice Michael Megaw, heavily relied on the ‘best interest’ analysis when considering whether the vaccine was in the child’s best interest. In doing so, the judge considered the public health directives available, evidence from the child’s doctors, medical evidence, and evidence pertaining to the true views and preferences of the child.
Ultimately, Megaw considered the evidence put forth by both parties and ruled in favour of the father. In his judgement, he cited that it was ultimately in the best interest of the child to be protected against COVID-19. Megaw ordered that the father was able to proceed to get the child vaccinated, in consultation with the child’s doctor but without requiring the consent of the mother.
There have beena series of similar decisions in line with Megaw’s judgment, which make it clear that absent significant expert evidence to the contrary, it is presumptively in a child’s best interest to be vaccinated against COVID-19. This decision echoes the court’s sentiment that judges’ are unlikely to go against the recommendations of the government and public health authorities in deciding whether the vaccine is safe and effective.
These expenses refer to section 7 of the Child Support Guidelines (the “Guidelines”) which speaks to the provision of child support in addition to the usual monthly table child support. According to the Guidelines, section 7 expenses are discretionary and can be ordered by the court on a party’s request. In ordering a spouse or parent to pay these expenses, courts will consider (i) if the expense falls within one of the enumerated listed expenses, (ii) the necessity of the expense in relation to the child’s best interests, (iii) the reasonableness of the expense in relation to the means of the parents or spouses and those of the child, and (iv) the spending pattern of the parents or spouses in respect of the child during cohabitation.
Types of section 7 expenses – special or extraordinary expenses
According to the Guidelines, the following are expenses that a parent or spouse could claim under section 7:
childcare expenses incurred as a result of the employment, illness, disability or education or training for employment of the parent or spouse who has the majority of parenting time;
that portion of the medical and dental insurance premiums attributable to the child;
health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;
extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;
expenses for post-secondary education; and
extraordinary expenses for extracurricular activities
Distinction between extraordinary and special expenses
The Guidelines further provide a two-part definition of what constitutes an extraordinary expense (to differentiate this from a special expense). Extraordinary expenses can mean expenses that exceed those that a parent or spouse can reasonably cover, considering their income and the amount of child support they would receive. Extraordinary expenses can also refer to expenses that the court considers to be extraordinary taking into account:
the amount of the expense in relation to the income of the parent or spouse requesting the amount, including the amount that the parent or spouse would receive in child support,
the nature and number of the educational programs and extracurricular activities,
any special needs and talents of the child,
the overall cost of the programs and activities, and
any other similar factors that the court considers relevant.
Extraordinary expenses are concerned with the cumulative financial impact of the expenses on the parent or spouse, rather than single expenses at a time—special expense. Regardless of whether an expense is special or extraordinary, all expenses under section 7 must be proved to be necessary and reasonable by the party claiming them.
Courts consider all factors before ordering Section 7 expenses
A parent or spouse claiming a section 7 expense has the onus of proving each element of the expense to the court as defined above.
In Costescu v. Costescu (2014 ONCJ 218) Justice Curtis stated that the onus to prove a section 7 expense was on the parent seeking contribution for that expense. She further intimated that the party claiming the expense had to demonstrate that it was reasonable and necessary.
In Bhupal v. Bhupal (2013 ONSC 60) the parties were married for 16 years and had one child. The respondent, the father, who had an annual income of $313,000 initiated variation proceedings seeking, inter alia, the elimination of section 7 expenses related to nanny expenses. The court held that the expense of the nanny was not necessary to allow the applicant to work and was not an allowable section 7 expense. The court ordered that the respondent was no longer required to contribute to the cost of the nanny.
My partner and I received lots of cash gifts from her parents throughout our marriage. Can I ask for the gift to be included as income to my partner?
Whether or not gifts received by a spouse or parent from their parents or grandparents can be imputed as income for the purpose of support obligations variescase-by-case. In imputing income, Courts have made a distinction between parents or spouses who receive one-time, needs-based gifts from their families from those who receive such gifts on a regular and periodical basis. In Bak v DobellJustice Lang stated that “usual gifts, such as those given to mark a special occasion, are not included as income”. Justice Lang further stated that in considering whether it is appropriate to include the receipt of unusual gifts in income, a court will consider several factors, including:
1. the regularity of the gifts;
2. the duration of their receipt;
3. whether the gifts were part of the family’s income during cohabitation that entrenched a particular lifestyle;
4. the circumstances of the gifts that earmark them as exceptional;
5. whether the gifts do more than provide a basic standard of living;
6. the income generated by the gifts in proportion to the payor’s entire income;
7. whether they are paid to support an adult child through a crisis or period of disability;
8. whether the gifts are likely to continue; and
9. the true purpose and nature of the gifts.
In the Bak case, the mother (the “Applicant”) applied to increase the father’s (the “Respondent) obligation to pay child support by imputing income based on the Respondent’s lifestyle and receipt of gifts from his father. The Respondent had a chronic disorder that resulted in an inability to maintain employment. As a result of his inability to work, the Respondent’s father provided him with a monthly allowance to cover day-to-day needs; paidall his medical bills; and bought a property for his use to motivate him to be self-sufficient. The Court of appealaffirmed the trial judge’s decision to dismiss the wife’s motionstating that the husband had no entitlement to a stream of income from his father; the gifts were intended only to encourage thehusband’s self-sufficiency;they were more in the nature of support for an adult child than an allowance; and they did not provide the Respondent with an extravagant lifestyle.
When gifts are imputed as income
In Korman v Korman, the parties were married for 21 years and had two children. Throughout their marriage, the husband’s parents assisted the parties financially, includinghelping pay for their matrimonial home, gifting the husband money to start two businesses, paying for their children’s camp and private school expenses, and paying the husband’s legal fees. The husband applied for Divorce and other relief under the Family Law Act. In determining child and spousal support, the trial judge imputed the gifts the husband received from his parents in his annual income. On appeal, the Court of Appeal held that the trial judge was right in imputing the income. The Court found that it was appropriate for the trial judge to take into consideration the gifts given to the husband by his parents. The gifts were substantial in size andwere provided regularly and on an ongoing basis.The Court stated that the gifts helped the husband establish a lifestyle well above a basic standard of living for himself and his family during the marriage.
Takeaways from the decisions of the Courts
Courts are likely to impute gifts as income if such gifts are significant, are provided on a regular and periodic basis, and have the effect of entrenching a lifestyle that is above a basic standard of living.
In understanding the difference between an application and a motion to change in family law cases, it is imperative to start with basic definitions.
What is an Application?
An application is how family court cases are initiated. Rule 8 (1) of the Family Law Rules provides that to start a case, a person shall file an application in the prescribed form. In an application, an individual involved in a family law dispute can make a claim against more than one person; and more than one claim against the same person. An application sets out: (i) the issues that a judge is asked to resolve; (ii) the applicant’s relationship to the respondent; (iii) details about any children from the relationship; (iv) and any other facts relied on to support the application.
What is a Motion to Change?
A motion to change is the court process used when a person, who is a party in an already commenced family court case, wants to ask a judge to:
1. change or end a final family court order, or
2. change or end an agreement to pay support.
Rule 15 (5) of the Family Law Rules provides that a party who wants to ask the court to change a final order or agreement shall serve and file a motion to change in the prescribed form, with all required attachments.
A motion to change is used to vary or end final orders of the court as they relate to:
· support payments,
· decision-making responsibility,
· parenting time, or
· a restraining/non-harassment order.
Applications initiate the process in family court cases, whereas motions to change are utilized to vary or end a final family court order or an agreement to pay support in an already commenced family court case.
The Exception – When Required to Proceed by Motion
Despite what has been stated above, there are situations when parties in family law cases are required to proceed by motion instead of an application. Rule 8 (1.2) of the Family Law Rules provides that the party entitled to enforcement under a family arbitration agreement shall make a motion in that case rather than an application.
My ex-husband and I have reconciled. What happens to our separation agreement now?
The effect of reconciliation on your separation agreement can vary depending on the circumstances, and here, we will refer to case law to help us understand the varying effects.
The general rule is that a separation agreement (hereinafter the “agreement”) is void upon reconciliation because generally, such an agreement does not explicitly contemplate the parties’ reconciling. Therefore, if you and your partner intend to preserve the terms of your agreement if reconciliation were to occur, your intentions must be clearly stated in your agreement.
An example of this is Emery v. Emery, where the agreement was deemed void because it clearly set out the parties’ intentions, with no indication of change upon reconciliation. In Emery, the wife received the proceeds from the sale of the matrimonial home and, in exchange, released her claims to spousal support and her husband’s pension.
Another example is the decision in Sydor v Sydor (hereinafter “Sydor”) where the Court of Appeal held that the agreement was void upon reconciliation. This was because the husband and wife entered into an agreement that explicitly provided for property arrangements that would be final and binding.
Sydor reiterated the common law rule that:
“the separation agreement is void upon reconciliation, subject to a specific clause in the agreement that would override the common law or a clause that would be implied from the agreement that the intent of the parties was that transactions carried out under the agreement will remain in place.”
In other words, certain clauses or provisions in an agreement may be interpreted as the exception to the general rule that the agreement is void upon reconciliation.
This was the case in Miaskowski v MacIntyre (hereinafter “Miaskowski”). In Miaskowski, the couple entered into an agreement approximately two and a half years after separation. The couple remained married during their seven years of separation, and upon reconciliation, they remained together for another nine years before separating a second time.
In their agreement, the wife had agreed to release any claims to the husband’s Canada Post pension. The agreement also included the following reconciliation clause:
if reconciliation lasted for not more than 90 days, the agreement would not be affected, and
if the parties reconciled for more than 90 days, the agreement would become void, except … “any payment, conveyance or act made or done pursuant to the provisions in this agreement.”
The reconciliation clause effectively preserved the agreement if the reconciliation lasted less than 90 days but voided the agreement if the parties reconciled for more than 90 days. The exception to the voiding provision was “any payment, conveyance or act” done under the agreement would not be invalidated. The exception emphasises the transactions already completed pursuant to the agreement.
The final decision of the Court of Appeal affirmed the common law rule stated in Sydor, and found that the agreement was indeed void, however it was still subject to the exception provision.
In simple terms, the court found that because no payment or conveyance was ever made with respect to the wife’s entitlement to a share of the husband’s Canada Post pension, the exception to the voiding clause did not apply. As a result, the wife’s release to a share in the pension was deemed void and she was entitled to receive a share of the husband’s pension from the date of marriage to the date of the second separation.
The take-away from these decisions, and particularly the recent decision in Miaskowski is that it is important to ensure your intentions are clear and explicitly stated in your separation agreement, regardless of whether the agreement contemplates reconciliation. One way to do this is to have a lawyer review the terms of your agreement.
Pleadings include an Application, an Answer, and the Reply.
Often there is a misconception and concern among self-represented parties or new lawyers about amending an agreement. Let us see what the Family Law Rules have to say about this subject.
The Rules provide that if you filed an Application and the other party has not responded yet, then you can amend your Application. The Family Law Rules set out how to do that. In this case, you can amend the Application without the court’s permission or consent from the respondent.
However, if there is an Answer filed by the respondent, then you will need consent from the respondent to make any changes to the Application.
Why would you want to amend the Application?
Usually, you would want to amend if you:
forgot to include a request that you would like to ask the court, but you did not include it in your original application; or
think there are material facts that absolutely must be pleaded in your Application and you did not include that; or
maybe you want to remove a claim that you made and no longer want to pursue.
Those are some of the reasons you might want to amend your Application or Answer.
Remember: if there is no Answer filed, you can amend the Application in the form prescribed by the Rules. If there is an Answer, then you need consent from the Respondent.
If you are the Respondent and you want to amend your answer, then you can do so within 14 days of being served with an amended Application. For instance, you have been served, and the applicant amends their Application, where you previously filed an Answer, you have 14 days to amend your Answer.
What happens where there is no amended Application? In that case, you also need consent from the other side.
For the most part, usually, if you want to amend an Application or response or Answer, you will usually need the consent of the other side. Often people are concerned and do not want to give their consent. It is usually out of concern for what the other party wants to do. There is obviously distrust on both sides and there is apprehension that someone is trying to pull a fast one and things like that.
It is important for you to understand that it is almost a right to amend an Application. This right is expressed clearly in the Rule:
On motion, the court shall give permission to a party to amend an Application, Answer or Reply, unless the amendment would disadvantage another party in a way for which costs or an adjournment could not compensate.
A motion is usually the request filed by the party seeking to make the amendment. The Rule essentially provides that the courts will grant a request made on a motion by a party, whether it be the applicant or respondent, to amend their Application or Answer; except where granting it will disadvantage the other party in a way that cannot be compensated for by cost or an adjournment.
The mere fact that a person amending their Application would result in a delay in the process or inconvenience you in having to respond to an extra claim that you may believe is frivolous, unnecessary, and disadvantageous to you, will not prevent the court from granting that request. The court recognizes that an amendment may disadvantage you. It is only a disadvantage that cannot be compensated for by way of cost or an adjournment that would prevent the courts from granting the request.
For example, a common concern is if you allow the party to amend their Application and they bring another claim, then you will have to respond to it. Indeed, you do have to respond, however, it is possible that this effort may be compensated for by way of a cost order.
Another example is you may not have time to respond to the additional claim before the next court date; however, an adjournment is a tool that can be used to deal with that disadvantage.
When you are faced with a request for an amendment, unless other factors exist, it is strongly encouraged that you consent. There is no point utilizing court and your resources to ask for the party to be refused an amendment. Remember, the only time that refusal would be justified is if there is a disadvantage that cannot be compensated for by way of cost or an adjournment.
A better strategy, in my opinion, would be consenting to that amendment and then asking for an order for costs to compensate you for the additional resources that you have had to put towards amending your Answer.
While a joint owner to a property has prima facie right to its partition and sale, that right may be restricted if the party requesting the sale is engaging in conduct that is malicious, vexatious, or oppressive.
In Rainville v. Walsh, 2021 ONSC 446, the court refused to Order a sale of the matrimonial home because it would result in the husband having no place to live. Justice Ellies stated:
“The owner of real property has a prima facie right to have the property sold and to recover the value of their interest in the property: Partition Act, s. 2; Davis v. Davis (1953), 1953 CanLII 148 (ON CA),  O.R. 23 (C.A.), at p. 29. However, that right is subject to a narrow exception, namely where the party seeking the sale is guilty of malicious, vexatious, or oppressive conduct: Latcham v. Latcham, 2002 CanLII 44960 (ON CA), at para. 2. In Greenbanktree Power Corp. v. Coinamatic Canada Inc. (2004), 2004 CanLII 48652 (ON CA), 75 O.R. (3d) 478, at para. 2, the Ontario Court of Appeal held oppression includes hardship on a co-owner resulting from the order. In the circumstances of this case, I have concluded that there would be hardship to Mr. Walsh if the Jane Street property were to be sold at this time.”
Mr. Walsh was an alcoholic who though sober at the time of the motion, did not appear to be in a very stable state. He had lost his driver’s licence more than once for impaired driving and had been hospitalized for alcoholism or other alcohol-related illnesses. While Mr. Walsh’s company had several rental properties, they were all being occupied except for one which required repairs. Even if Mr. Walsh gave notice to a tenant to vacate one of the units so he could occupy it, given the recent passage of O. Reg. 13/21 passed under the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9, which currently prohibits residential evictions. the court was not certain the Mr. Walsh would be able to evict them.
The wife’s request for partition and sale was denied.
When parties who own a home together separate, often one person wants the home sold while the other would like to keep the home. It would ordinarily not be a big deal except often, the person who wants the home sold has one or more of the following reasons:
They believe they would get more money if they sold to an arms-length party;
They do not believe their ex-partner would be able to afford to buy out their interest in the property;
They believe it would take longer for their ex-partner to arrange financing than selling in the open market;
They are simply uncomfortable with the other party getting to keep the family home;
This list would not be complete without sweet old revenge being one of the reasons why a party refuses to sell to their ex-partner.
Unfortunately for the person who wants to keep the home, there is nothing the courts can do to ensure this. Too much time and money is spent on motions where a person is seeking a right to the first refusal to purchase a property. Sadly, in some cases, trial judges do in fact grant this relief but, on an appeal, it most certainly would be reversed as was the case in Barry v. Barry, 2020 ONCA 321
What is a right of first refusal?
In the context of a matrimonial home or a family residence, the right of first refusal gives one party the first opportunity to buy out the other party’s interest/ share of the matrimonial home, without the home being listed for sale. If the home is listed for sale, the right of first refusal means the party with the right of the first refusal gets the first opportunity to buy the house.
According to the court in Martin v. Martin which was cited by the Ontario Court of Appeal in Barry v. Barry:
As this court explained in Martin v. Martin,  8 O.R. (3d) 41 (C.A.), a right of first refusal is a substantive right that has economic value. It falls outside the boundaries of what is ancillary or what is reasonably necessary to implement the order for sale of the matrimonial home. It distorts the market for the sale of the matrimonial home by eliminating the need to compete against any other prospective purchaser, thus potentially reducing the amount the joint-owning spouse realizes on the sale. In the absence of consent, the right of first refusal should not have been granted in this case. If the respondent seeks to purchase the matrimonial home, he must compete with any other interested purchaser.
A few takeaways from the quote in Martin’s case:
A right of first refusal has economic value. It is separate and above the rights of a joint tenant to deal with their property.
A right of first refusal distorts the market for the sale of the home in favor of the party who has that right.
Parties can agree to a right of first refusal but it is outside the boundaries of what is reasonably necessary for a judge to order for the sale of the home.
A joint owner is always able to compete in the open market and purchase the house by offering the best price.
In Barry v. Barry, the Court of Appeal held that the right of first refusal should not have been granted in that case. It allowed the wife’s appeal and vacated the section of the trial judge’s Order granting the right of first refusal. Because the wife’s appeal was successful, costs were awarded in her favor.
The lesson here is, if you will like to keep the matrimonial home or family residence, your best and the only option is to negotiate and get the other party’s consent. I recognize this may range from unpleasant to impossible in some situations, but truly, there is no other way.
Did you know that if you have been separated for more than 90 days because of a breakdown in your relationship you need to inform the Canada Revenue Agency (CRA)? Actually, you need to inform CRA whenever there is a change to your marital status such as:
You get married.
You enter into a common law relationship.
Your spouse or common-law partner dies.
You have been separated for over 90 days due to a breakdown in your relationship, not simply because you are physically unable to live with your partner because they are away for work or school for example.
When you update your status with the CRA, you avoid missing out on benefits you may be entitled to or avoid receiving incorrect payments.
Is it a gift or is it a loan? That is a question that we often grapple with in our family law practice.
A typical scenario is Jane and John are married and want to buy a home. Jane and John have both saved up some money for their down payment but unfortunately, not enough. Jane’s grandparents so kindly transfer $50,000 to Jane and John’s joint bank account and now they have enough for the downpayment and both are super excited to finally be able to purchase that dream home. All is right and well in the universe, until it isn’t.
Jane and John decide to call it quits and now must equalize their net family properties. Jane’s grandparents want their $50,000 back (or at least so says Jane) but John refuses, saying the $50,000 was a gift to him and Jane. Therein lies the problem! John has $25,000 at stake. He feels that the money really wouldn’t go back to Jane’s grandparents and is essentially Jane taking more than she is entitled to, in fact, he thinks, as a matter of principle, it is just wrong to ask for a gift to be repaid. Jane, of course, feels John is being ungrateful. Her grandparents simply helped them achieve their goal at the time. They have now accrued significant equity in their home so why shouldn’t her grandparents get their money back? She always understood it was a loan but even if it’s a gift, it’s her grandparents and her gift, right? If John isn’t being greedy, why can’t he just repay her grandparents and keep the equity he has accrued which by the way they never would have been able to get without her grandparent’s help.
As you can see neither John nor Jane is wrong. Their respective positions make sense. It truly does. However, the legal question remains. How does it get resolved? Simple. The intention of the grandparents at the time of giving them the $50,000 is what counts. That’s it. Not what Jane thought, not what John thought, but what the grandparents themselves intended. If Jane’s grandparents expected to be repaid, then it is a loan if they didn’t, then it’s a gift. I wish the analysis ended there though, but it doesn’t. That’s the nature of the law.
Even though Jane’s grandparents may have intended for the $50,000 to be paid back, if the court believes that the loan is not likely to be repaid, or is unlikely to be repaid in full, the courts can discount the loan, all the way to $0. What do I mean? t means, based on the facts of the case, the courts can decide that only half of the loan is likely to be paid back and so the court can discount the loan by 50% thereby allowing only a deduction of $25,000 from the NFP calculations. The court can also find that the entire loan is not likely to be repaid, in which case, the entire loan will be discounted to $0.
The law generally does not presume a gift, where money is transferred by a parent or grandparent to an adult child. So in this case, John would have the burden to prove that the transfer to Jane was a gift.
If you’re a parent or grandparent making a loan, what are some steps you can take to ensure that your intentions are respected by the courts?
Prepare a loan agreement
Include interest on the loan
Include a loan repayment date.
Consider registering a mortgage to secure the loan
Provide for periodic repayment of the loan
Even if periodic payments are missed, document demands for loan repayment.
As you can see, while the true test is the intention of the parents or grandparents at the time of the transfer, events after the fact, such as demand for repayments are considered by the courts in determining if the money is a true loan. While monetary transactions between family members can be very informal, the legal ramifications can be serious. It is important for all parties to be on the same page and documentation of your intentions can prevent future conflicts.
If you have a marriage contract you would like to set aside, you may be concerned about the timing of your claim. You may have heard about limitation periods which in the simplest terms means the timeframe within which you must start your case or you will be out of luck.
In Ontario, except otherwise provided in a different legislation, limitation periods are governed by the Limitations Act, 2002, SO 2002, c 24, Sch B. The Basic Limitation Period is 2 years from discovering that you have a claim. Which for the purposes of this post is 2-years from the day you realized there might be an issue with your marriage contract.
However, if you are bringing a proceeding for a declaration if no consequential relief is sought, there is no limitation period applicable. To add to the mix, the Family Law Act has its own limitation periods set out in section 7(3).
The issue of what limitation period applies to set aside a marriage contract was dealt with by the Ontario Court of Appeal in Kyle v. Atwill, 2020 ONCA 476.
In that case, the husband and wife signed a marriage contract the wife drafted from a template she found on the internet. She and the husband signed the contract a week before their wedding in July 2005. They did not get independent legal advice on their rights, neither did they exchange financial disclosure. In the agreement, they waived spousal support from each other and agreed to keep their properties separate such that in the event of a breakdown of the marriage, there will be no equalization.
In August 2012, the parties separated. Negotiations started but stopped due to the husband’s mental health. In 2015, the husband’s lawyer made contact with the wife’s lawyer but nothing was done. In August 2017, the husband brought an Application for spousal support and equalization. He did not specifically ask for an Order setting aside the marriage contract but he referred to the contract. He stated that he got no independent legal advice, no financial disclosure, and that he signed the marriage contract under duress.
The wife of course relied on the signed marriage contract as grounds to dismiss the husband’s claim. She then tried to summarily dismiss the claim which she argued was a claim to set aside the marriage contract and that the limitation period to do this had passed (It was more than 2 years since the parties separated. 2012 – 2017).
The wife was successful at the motion for summary judgment. The motions judge considered whether the husband’s claim was a proceeding for a declaration if no consequential relief was sought. In which case, s.16 (1)(a) of the Limitations Act which says there would be no limitation period will apply. The motions judge held that the husband was seeking consequential relief (equalization and spousal support) and so given he discovered his claim in 2012, he was past the limitation period and his claim is therefore statute-barred. The husband appealed the decision.
The issue on appeal was, what rule applied to a request to set aside a marriage contract? Is it the 2-year limitation period under section 4 of the Limitations Act, the 2 or 6-year limitation period under the Family Law Act, or no limitation period under section 16 of the Limitations Act?
While the panel was divided on their reasons, the Court of Appeal unanimously agreed that the husband’s claim was not statute-barred and overturned the motion judge’s decision.
I particularly find Justice Brown’s comment here interesting: “requiring a party to apply to set aside a marriage contract within two years of the discovery of some “injury, loss or damage” while the marriage remains on-going would result in a harsh, if not absurd, application of the Limitations Act.” Interesting, isn’t it?
Regardless of your opinion on the decision, the Court of Appeal in Kyle v. Atwill has made it clear that no limitation period applies to a request to set aside a marriage contract.
Many times, litigants involved with their family law court case, do not want their support payments to be enforced by the Family Responsibility Office – but they have no choice.
In Ontario courts, when a person is ordered to pay child or spousal support payments, the support order is automatically filed with the Family Responsibility Office (referred to as FRO). Even during those times when the parties and their lawyers agree that payments shall be made directly between each other, the court will continue to have the order enforced by FRO, as that is the default.
There are ways around this and terminology and/or having a mutual agreement is important. In your Court Order or Consent, the parties can agree to withdraw from FRO enforcement and hae the payments made directly to the recipient via e-transfer or even post-dated cheques for example. It takes the mutual consent of the parties to do so and it is as easy as signing a form and sending it into FRO to let them know you want to withdraw from their enforcement. However, if one party wants FRO to be involved, there really will not be a choice to the other party.
Is having FRO involved a bad thing? Not at all. It really depends on the parties. Not all litigants have a poor relationshipwith one another, and they can find a way to manage support payments between themselves. In those situations where the payor is unreliable to make a payment or you need the payment garnished from their wages, FRO can become your tool. There are pros and cons to using FRO for enforcing your support payments which we can go over with you to make sure it is right for you. Book a consultation with one of our experienced family law lawyers in Toronto today! We also serve our clients in Markham, Scarborough and Pickering.
As experienced family law lawyers, we have seen our fair share of things to look out for our clients. Here are some tips for what to look out for if your ex-partner is trying to manipulate or take advantage of the situation.
Choosing a different date of separation – The date of separation is the “tell-all” in your separation. It is the date that governs many things, such as when child support/spousal support shall start being paid, when equalization shall take place, etc. Sometimes, partners try to use a different date of separation intentionally to lower how much will be paid in equalization. They move some of their assets around and increase their debts. The they choose a date of separation after this to reflect the change in their finances.
Failing to disclose assets – A big part of separation is disclosing finances for your Financial Statement. There is a requirement for full and frank financial disclosure and sometimes, parties attempt to hide assets or conveniently forget about bank accounts that they have, like a TFSA or RRSP. It is important to do your homework and try your best to remember what accounts/assets your partner has when it comes time to reviewing their financial statement. For example, if you think they have more accounts with a certain bank because of a reasonable belief that you saw a lot of mail coming from that bank or comments were made during the marriage about contributing to certain accounts, then it is a good idea to request an account summary from the bank. Looking at bank statements is also a good idea to see any suspicious transfers or if your ex’s income is being deposited into any of the accounts. If not, then that is a clear indication a account is missing.
Speaking ill about you to the children – As we all know, many children are like sponges and are very easily influenced by what one of their parent’s say. When your partner starts speaking ill about you to the children, he/she is attempting to change their mindset about how they view you for parenting purposes. Even discussing the legal issues with the children is frowned upon because children shall not be involved in their parent’s separation like this. It is important to protect the children from the proceedings and ensure that they know the separation is not their fault.
“Gaslighting” you –Gaslighting is a form of psychological manipulation that causes you to raise a doubt in your memory or recollection. Separation and divorce sometimes bring the worse out in people and they become obsessed with “winning”. Or sometimes, some partners are surprised you decided to proceed with the separation and retain a lawyer, so they want to try to bring you back under their control by causing you to doubt yourself.
Increasing your legal bill – By causing delays, not disclosing information or documents, not responding to your lawyer, or over responding to your lawyer – these are all things that increase your legal bill.
Not showing up for court – Imagine how hard you and your lawyer have worked to prepare for your first Case Conference, only for your ex not to show up, show up unprepared or use some delay tactics (i.e. request an adjournment). All of this is an emotional roller coaster of getting to that day only for it not to proceed sometimes and sometimes even making you tired of the length of time it has taken to lower your position for a settlement. This does not always work but definitely something to look out for.
Not disclosing true income – You hear the stories, “They work for cash,” “They have unreported income,” “They have a side job,” etc. Some ex’s attempt to get away with not disclosing their true income for support purposes. An experienced family law lawyer would know how to handle this as best as possible and even avenues of attempting to impute income to them.
There are so many more actions to look out for in a family law matter. Do they all work – no! However, they are definitely frustrating to deal with and each item that was mentioned above has a way of not working out as planned for your ex.
A bumpy ride in family law litigation is sometimes normal and it is important that you understand what the process is and ways your ex can conduct themselves. For different types of tactics your ex-partner may try to use to frustrate the process, there can sometimes be relief found in Cost Awards and Motions. These are great ways of providing some consequences to your ex. Speak with one of our experienced family lawyers today for more information and how we can help you!
If you have a Pension Plan, you are probably aware of its death benefit. Do you know how your death benefit works? There may be important differences in who receives this benefit depending on the circumstances at the time of your death.
If you die before retirement
In this case, generally, your spouse will receive the benefit. Your spouse is the person you are married to; or that you have been living with for, at least, three years; or, you have been living with for less than three years, but you have a child together.
There are two exceptions to the spouse rule: if your spouse waives their entitlement in writing (before or after your death. If it is waived before, they can cancel the waiver anytime while you are alive.); and if you and your spouse are not living together anymore – if you were separated or divorced at the time of your death.
A Separation Agreement is important for many reasons, and this is one of them. Imagine you have been separated for years and you start living with a new partner. If you die before signing an Agreement or getting a divorce, your new partner may need to face a battle to receive your benefits. The person you are legally married to may want to pursue the benefit entirely, or claim their share, without you ever having the chance to negotiate it.
If you don’t have a spouse at the time of your death, your named plan beneficiary will receive the benefit. If there is no named beneficiary, the benefit will be paid to your estate and distributed in the same way your inheritance will be distributed. If you don’t have a valid or up to date Will, this, again, may have unexpected results.
If you die after retirement
If you are already receiving your pension payments when you die, and you have a spouse, they will receive the benefit as a joint and survivor pension. If you don’t have a spouse when you retire, the death benefit paid to your beneficiary, if any, depends on your plan’s specific terms and conditions.
The Joint and Survivor Pension means that your eligible spouse will receive at least 60% of your monthly payments for their lifetime, even if they marry again.
To be eligible, your spouse should be still in a relationship with you at the time you first receive your pension payment. They will still be entitled to the death benefit if you are separated at the time of your death. This applies even if you have a new partner. That’s because your spouse was already entitled to their share of the benefit when you died. The only way to avoid this is to negotiate their entitlement when drafting your Separation Agreement or pursuing your divorce. It is better to consult with a divorce & family lawyer in Toronto to draft your Separation or Divorce agreement.
As you may already know, at AP Lawyers, our values are:
We always strive to model our actions as a firm, to be true to our values. We look at our values and reflect on how we can do things even better. For e.g. Innovation, Convenience & Respect led us to think, how can we leverage technology to provide faster more convenient legal services?
Using secure video technology, we were able to hold virtual settlement meetings by having our clients at our offices and the opposing party and their lawyers, miles away, and yet have very meaningful settlement talks with our clients feeling safer and more comfortable. We also eliminated commute time for the lawyers, thereby costing the clients less (remember, one of our values is being responsible with our client’s resources. So check that too).
We did this long before social distancing and Zoom became the trend.
We have 90-minute Q&A sessions over the phone to provide answers to specific legal questions our clients have in real-time, in the most convenient manner for them.
With telephone and video consultations, we are able to offer legal advice to clients in every corner of the globe, especially those looking to immigrate to Canada.
These are just a few ways AP Lawyers uses technology in delivering legal services to our clients. Every day, we continue to strive and find more ways to be quicker, faster, and better for our clients.
To all of the parents who are currently trying to manoeuvre Covid-19 and parenting arrangements with the other parent – this is for you!
The Ontario Court of Justice and Superior Court of Justice announced on March 16, 2020 that they will only be accepting URGENT matters for their family law departments. The pressing question that everyone has is – Is my matter urgent?
While your parenting issues are pressing and urgent to you, the courts may not see it that way. We are currently in a unique and unprecedented time. What does that mean? It means that the courts do not have all of the answers right now and everything is going on a case-by-case basis.
What is truly urgent is going to be judged against a high threshold to use the limited court resources for a decision.
On March 24, 2020, Justice Pazaratz of the Hamilton Superior Court of Justice, endorsed a Motion decision that we can rely on to decide if a case is truly urgent to be heard by the courts. (Ribeiro v. Wright, Superior Court of Justice, Family Court – Hamilton)
In this case, the Mother brought an Urgent Motion to prevent the parties 9-year-old son from attending the Father’s home in light of Covid-19 and concerns that she and her family are practising social distancing and self-isolation and that she has concerns the Father is not. The parties have joint custody of the child pursuant to a Final Order from 2012 with primary residence to the Mother. There is a current outstanding Motion to expand parenting time to the Father.
What is noteworthy of Justice Pazaratz’ Endorsement is that he takes the time to outline what is an urgent parenting matter for the courts attention during this time and provides guidance for litigants and parents. This is no surprise as Justice Pazaratz is usually very detailed in his decisions with making strong statements to illustrate his decisions. This case is no exception.
What are some takeaways from the case?
There is a presumption that existing parenting arrangements, whether and order, consent, agreement etc., should be respected and complied with in the best interests of the child;
These are extraordinary times and parents are understandably confused and worried about what to do.
This is uncharted territory for our court system and that we all have to work together to promote both the physical and emotional well-being of our children;
A blanket policy that children should never leave their primary residence – even to visit the other parent – is inconsistent with a comprehensive analysis of the best interests of the children;
Modifications, flexibility, creativity and common sense are all required by everyone right now to carry out parenting arrangements as best as possible;
In some cases, custodial or access parents may have to forego their times with a child for reasons such as recent travel, personal illness, exposure to illness etc.;
In some cases, a parent’s personal risk factors through employment or associations may require controls with respect to direct contact with the child;
In some cases, a parent’s reckless lifestyle or behaviour in the face of Covid-19 which raises serious concerns about failing to take expected precautions, such as social-distancing, will have zero tolerance;
Each case has its own unique circumstances and arrangement modifications.
If you need to bring an Urgent Motion for parenting issues in light of Covid-19, it would be expected of you to try everything else before you do. It is also important that you outline examples of behaviour or specific evidence against the other parent which are inconsistent with Covid-19 Protocol and the risk to the child.
All in all, this is something new for everyone. We all need to use our best efforts to and prior to taking that step to stop existing parenting arrangements, take a step back and think about how to make it the best possible in these circumstances, if possible.
When in December 2019 Dr Li Wenliang alerted his colleagues of a virus he thought looked like the other coronaviruses (e.g. Sars) it is unlikely that even he would have predicted the circumstances that the world has found itself in today. Sadly, the doctor passed away early last month after he contracted the disease, while treating patients in Wuhan, China. We have now come to call the novel Coronavirus Disease, “COVID-19”. On March 11, 2020 the World Health Organization (“WHO”) characterized COVID-19 as a pandemic. Two weeks later, with the number of confirmed cases and deaths from the disease increasing in various parts of the world, governments and their agencies and the public are now using technology to engage in business operations while maintaining responsible social distancing.
As of March 23, 2020, 6:00 p.m. EDT the official confirmed number of COVID-19 in Canada was 1,646, after 107,147 people having been tested. We know that we must do our part to reduce the likelihood that our healthcare system becomes overwhelmed with too many new cases all at once. As such there have been several areas of legal practice that has changed or been delayed until further notice. The province of Ontario has made certain declarations of which our clients should therefore be aware.
All family trials previously scheduled between Friday March 20, 2020 and Friday May 29, 2020 are suspended, subject to a judge seized with a continuing matter ordering otherwise.
All non-urgent matters, including trials, are adjourned for 8-12 weeks. Details of the new schedules would be provided at a later date.
All onsite family mediation and information services are being suspended until further notice. Where possible these services may be offered remotely, including online or by phone.
Canada is currently denying boarding to most foreign nationals, on flights to Canada coming from all countries. Only Canadian citizens, Canadian permanent residents, or their immediate family members, who show none of the symptoms of COVID-19 will be allowed to board, and all travellers will be asked to self-isolate for 14 days upon entry into Canada.
Travel across the Canada–US border Canada is temporarily restricted for all non-essential travel across, including by Canadian citizens, permanent residents wishing to return to Canada.
Immigration and Refugee Board of Canada (“IRB”) front offices are closed until further notice. All in-person hearings and mediations, except detention reviews are postponed until after May 3, 2020.
The processing times for all applications to Immigration, Refugees and Citizenship Canada (“IRCC”) may experience disruptions caused by the COVID-19.
Given that the Succession Law Reform Act which governs how a Will has to be executed in order to be valid requires that the testator and witnesses be “in the presence of” each other, while signing the document, we will not be having any virtual estate planning appointments. This requirement has been held to mean that all parties are in the same room at the time of signing. We are not in a position to witness the signatures virtually.
We are however able to set up remote video consultations with potential Estate Planning clients.
Our lawyers would be in touch with our clients that have matters scheduled during this relevant period. Client meetings with our lawyers remain available via telephone and other online tools.
If there is one thing that Family Law Lawyers have learned during this COVID-19 pandemic, it is that there is so much we do not know about how to navigate the justice system with all these rapid changes caused by this pandemic.
Let’s take one example. The Superior Court of Justice suspended ALL scheduled hearings indefinitely, starting March 17, 2020. The courts, however, will continue to hear urgent matters during this emergency period, including:
requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home);
urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child;
dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order;
in a child protection case, all urgent or statutorily mandated events including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings.
What then can be done in a situation where a custodial parent denies access visits to the access parent? Is this a wrongful retention of a child so that the issue can be heard at this time? It is certainly not related to the child or parent’s safety. But really, is it wrongful retention?
If it isn’t, as is most likely the case, is the access parent powerless to do anything during this emergency period?
Thankfully, if a parent failed to return a child after March Break as provided in a court order, it clearly would be a case of wrongful retention. But is it? Couldn’t that party just argue that the government extended the March break and so they really are not violating the order?
What if a parent has concerns about the hygiene conditions at the other parent’s home and refuses to allow the child to visit the home, thereby blocking that parenting time with the child? It is urgent because it surely relates to the safety of the child at this time – Right? Well…. could be wrong.
As with everything COVID-19, we seem to be left with more questions than answers but be not dismayed. At AP Lawyers, we are following the developments closely, asking questions, and getting answers where possible (frankly, the authorities are still trying to figure most of it out).
What you can always count on is our creativity in getting solutions and that matters now, more than ever. We remain open to serve you via Video Conference, Skype, Telephone, Email, and Live Chat.
Sometimes family law matters do not require retaining the services of a family law lawyer. One such time is when you are confident about representing yourself in Court but want to make sure that you have the legal knowledge so as not to jeopardize your chances of success.
What is family law coaching?
A family law coaching session is different from an initial consultation.
An initial consultation is an appointment where we get to learn about you to fully understand your legal issues. We then advice on you on the best solution and provide you an action plan. An initial consultation is designed to be a one-time event, where family law coaching can either be a one-time event, or an ongoing process. You choose.
Family law coaching is different from full legal representation from our law firm because YOU run the show. You have full control of your family law matter and you use our services when and where you need us.
AP Lawyers has several family law coaching/unbundled legal services that allow you to represent yourself in your family law matter, but still have the full benefit of independent legal advice. For example, our AP Silver Coaching Package allows you to prepay for 10 Telephone Calls and/or Emails with an experienced family law lawyer. You get to choose when to call or email us and about what issues.
Are you in court negotiating a settlement and want to make sure the deal is fair? Give us a call then. Do you have a question regarding a letter you received from the opposing lawyer? Send us an email then. Are you unsure about the next step in the process? A quick call can set you in the right direction.
Another type of family law coaching available is a Quick Question and Advice Coaching Session. This type of coaching session is a short 20-minute meeting that is conducted via phone, Skype or Zoom. These sessions can be purchased in blocks of 20-minute increments.
Our family law coaching services can also be used to prepare yourself for your Family Law Trial or simply assist you with drafting court documents.
We can review your matter in detail and
Discuss potential outcomes based on the information you provide.
Inform you of your rights and legal obligations.
Inform you of how the law would apply to your specific situation and how it could impact you based on various scenarios.
Prepare you for your upcoming negotiation, mediation, arbitration, or Court appearance on your own to resolve the family law matter.
Your family law lawyer will give you solid legal advice on how to strengthen your case and your position.
Your family law lawyer can help craft the groundwork to create an offer to reach a settlement with the other party.
Your lawyer will coach you so that you are better equipped to calmly and factually present information to the mediator, arbitrator, or Judge.
With Family Law Coaching, you get legal advice, custom tailored to your needs.
A family law coaching session can be as little as 20 minutes or as long as a whole day, depending on your needs. Remember, you are always in control and we have created various options to meet the varying needs our clients.
What Are the Benefits of Family Law Coaching Sessions?
The primary benefit is family law coaching sessions cost less than retaining a family law lawyer full time to represent your interests. If you are on a tight budget or have a situation where you are fully capable of resolving the matter on your own, then a family law coaching session could be the right choice. However, this option is not ideal for complex family law matters.
If you are facing an emotional or stressful family matter related to family law, it is important to obtain the right information so you can make an informed decision. Listening to what friends and family might say is not actual legal advice. It is merely their opinion or what occurred in their particular situation. Each person’s situation is unique and has its own set of circumstances.
Transcript – Blog Video – Partition & Sale of the Family Home
My name is Angela Princewill and I would like to talk to you about partition and sale of the matrimonial home.
You might be experiencing a situation where your partner is not agreeing to buy out your interest in the home and is also not agreeing to the home being put up for sale.
It might seem like there is no way out and today we want to talk to you about an option that is available to you under the Partitions Act which can compel your partner to put up that home for sale or otherwise buyout your interest in the property.
According to the Partitions Act, so long as you have an interest in a property, whether it is a legal or equitable interest, you have a right to seek that that property be partitioned and sold. The partition is so that your interest in the property can be divided—separated so to speak—from your partner’s and you can get whatever value that you seek for your portion of the property.
The key factors to know is that the property has to be situated in Ontario; it also does not matter whether or not you have legal title to the property. In other words, you may not be on title to the home and you would still have this remedy available to you.
If all options for negotiation have been exhausted, you need to bring an Application to court and make sure to check the box that you are asking for the sale of the matrimonial home. The court will grant that order except where there are compelling reasons why the home should not be partitioned and your share sold off.
It is very fact based and the court will look at each case based on its merit. There have been different reasons that we have seen in our practice as to why people have raised the issue of why it is not appropriate for the home to be sold or partitioned.
If it is not going to affect the other person’s interest negatively—when we say negatively, we do not simply mean there will be no negative impact at all, the other side may have an interest in holding on to the property for whatever reason and a partition and sale might negatively affect them—the court will likely grant the order. But it will be very fact based.
At the end of the day, your job is to make sure that you present it to a judge to see that whatever factors or reasons that the other side is presenting for not putting up the home for sale, that they are not good reasons and are not sufficient reasons to block you being able to get value for your interest in the property.
The partition and sale of a matrimonial home can get quite technical. It is generally not requested under the Family Law Act, even though there are some provisions there that speak to this. It generally can only be compelled under the Partitions Act.
But the take away from this video is to know that there are options. You do not always have to wait for the other side to consent and as always it is best to approach things from a negotiation perspective.
But if those are falling through, do not feel all hope is lost and that perhaps because you are not on title to this property that you do not have any remedy.
Realize that so long as that property is in Ontario that you do have an interest in the property, whether it is a legal interest or an equitable interest, that there is a remedy to you to be able to get value for that interest.
I hope this is helpful to you. You can refer to the Partitions Act as well as the Family Law Act of Ontario, or you can give us a call or send us an email.
We would be happy to show you how those specific provisions of the Act may be applicable in your case..
Before a family law case can be heard in front of a judge on trial, there are many steps that need to be initiated that encourage the parties to settle disputes and issues from early on so that the matter does not have to end in trial. There are many reasons why it is better to stay away from taking your family law case to trial. These range from court expenses, to delayed settlements and long wait times, unpredictable outcomes, waste of judicial time etc.
Trial periods are long, expensive and can take a toll on your health and life. This is why settlement and trial management conferences were implemented to assist in resolving issues between parties in family law matters.
The purpose of a settlement conference is for both parties to come before a judge and discuss the issues in dispute and methods to resolve the issues without interference of the court. This conference follows after a case conference to which the judge has a duty to listen to each party, assess the issues at dispute and give their opinion as to about how your case will be decided should you go to trial. As a party to the proceedings, you have a right to listen or ignore the opinion of the judge, however, there are many added benefits to making the most out of your time at a settlement conference.
Some advantages of a settlement conference include, but are not limited to, saving money, saving time, avoiding trial and the stress/costs that are attached to it and having the flexibility of choosing your own settlement rather than having someone else choose it for you. You are free to discuss your case in a wholesome manner to which the judge will use his experience and knowledge to provide an opinion and point out any procedural issues brought up. Keep in mind that a good settlement is when both the parties have reached a fair compromise. To learn more about offers to settle, look at rule 18 of the Family Law Rules.
In terms of supporting documents, make sure to also bring with you a copy of the Trial Management Conference Form 17E. It is imperative that this is filed and served to before the conference at least 7 days prior if you are the Applicant and 4 days prior if your are the Respondent.
After the trial management conference, the next and final stage is the trial so it is crucial that all details are discussed before the trial occurs.
A Case Conference is an important part of the Family Law Court process. Pursuant to Rule 17 of the Family Law Rules, a Case Conference is a meeting, usually chaired by a judge, with the Applicant, Respondent and their lawyers, if any. If anyone else, such as Children’s Aid Society (CAS), Family Responsibility (FRO) or a Children’s Lawyer is directly involved, they will also be a part of the Case Conference. A judge chooses to meet only with the lawyers or with the lawyers and their clients to discuss the issues and how the case will go forward.
Goals of a Case Conference
Case Conferences take place early in a Family Law case for a chance explore settlement, identify which issues are in dispute, determine the strengths and weaknesses of each parties’ position, explore ways to resolve disputed issues (in and outside of court) and set up a date for the next steps involved in the matter such as a Settlement Conference.
A judge may encourage the parties’ to speak frankly about their positions so that he or she may make procedural orders so that the case proceeds more efficiently. Usually there are some issues that are left unresolved or some issues are determined on a temporary or final basis by virtue of the judge’s Endorsement.
If the parties reach an agreement on an issue, the judge may ask the lawyers to write it down and have each party sign it. If desired, this can be turned into a court order.
Do I need a Case Conference?
A Case Conference is a crucial step in a Family Law proceeding and is required if any party wants the court to make a temporary order about any of the issues, hear a motion to change a final order or agreement and proceed further with the matter.
There are exceptions to bringing a motion before a Case Conference based on urgency or hardship but a Case Conference is usually held before any notice of motion or hearing. Exceptions are listed in Rule 14(6) of the Family Law Rules.
Should you choose to skip a Case Conference and the judge determines that your matter is not urgent, you may be ordered to pay court costs for the other party. These costs could include all or part of the other party’s lawyer fees.
Documents required for a Case Conference
Case Conference Brief
Each party must serve and file their Case Conference Brief (Form 17A) on the other party. The party that asked for the Case Conference has to serve and file their Brief at least 7 days before the scheduled conference. The other party has 4 days to serve and file their Brief before the conference date. If neither party requested a Case Conference, the Applicant has 7 days to serve and file and the Respondent has 4 days to serve and file before the conference date.
If child or spousal support is an issue in the case, the parties’ must also serve and file a Financial Statement Form (Form 13 or Form 13.1) or an Affidavit updating the existing Financial Statement.
It is important to have these documents served and filed within the specified time limits before the scheduled conference date because the other party, and the judge, need to review the material.
Can the judge make orders at the Case Conference?
In limited circumstances, the judge can make an order regarding the issues of the matter. The judge usually makes procedural orders which include disclosure of documents, questioning of a party or setting time lines. However, should there be an undisputed issue, such as child support based on the payer’s income and Child Support Guidelines, this can be ordered as well.
How can we help?
At A. Princewill Law Firm, we have the expertise to successfully ensure your best interests are represented before the court. In family law cases, it is very important and beneficial to get the assistance of a lawyer because as a party to the proceeding, this is very emotional and stressful. It is common to miss a crucial step in the process or not know what the next steps are which can disrupt your position on the issues.
We have the expertise, experience, and knowledge to outline your rights and obligations for you. We will always support your best interests and our understanding of these processes makes it easier for us to represent everything you want and interests that you may not even be aware of. We will successfully guide you and walk you through the best approach for you and your situation.
Family members who don’t share the same religious beliefs should discuss their approach early on to avoid problems down the road when it comes to raising children, advises Toronto family lawyer Angela Princewill.
“While a family is together, the difference doesn’t matter as much. But upon separation, things change,” says Princewill.
She points to a recent British Columbia case as an example of how an issue can easily become complicated and costly. In A.R. and B.R. v. M.W. and L.R., 2015 BCPC 285 (CanLII), a mother who was raising her child on her own wanted the child to have access to her paternal grandparents.
But the grandparents, who were devout Jehovah Witnesses, insisted on taking the child to worship at the local Kingdom Hall – despite the mother’s requests for them not to – and exposing the child to church material. She had also repeatedly asked that they not have the girl address them as Poppa and Momma, preferring instead Grandma and Grandpa. But the issue of religion became a dominant theme in the breakdown of the relationship.
The situation had deteriorated to such a degree that the grandparents’ access to the child was reduced to supervised visits at the mother’s home. The grandparents petitioned the court for unsupervised visits but were ultimately unsuccessful.
Their son, the girl’s father, who had been “disfellowshipped” or excommunicated by the church, only visited his daughter and wasn’t involved in the child’s upbringing or paying support.
The grandparents had a high threshold to meet going into this case, says Princewill.
“Because they were neither the custodial guardians of the child nor did they provide her with her primary residence, their chances of a successful outcome in court was very low,” she says.
Princewill says both the primary residence of the child and the decision-making powers involving the child are two important aspects in family law although they are two separate and distinct factors.
“Only the parent who has custody can make the decision,” she says. “At the end of the day, if they’re not the primary caregiver, they have to respect the wishes of the other parent. Without legal representation, the parties may overlook these types of details.”
When possible, having as many relatives involved in a child’s life as possible is in their best interest, says Princewill, especially in a situation such as this where the child is being raised by one parent.
Parties need legal representation to understand the importance of a custodial parent and the power they possess, adds Princewill.
“It’s more than just primary residence,” she says. “If parties don’t share religious beliefs, they may want to determine from the outset who has the final say so as to avoid litigation later.”
Judge Edna Ritchie’s decision in the B.C. case emphasizes the will of the parent – the primary caregiver – outweighs the desires of the grandparents, who are one step removed.
Ritchie denied the grandparents unsupervised access to the child and told them until they can comply with the mother’s requests, their access to the child will remain supervised.
“The applicants appear unwilling, and perhaps unable, to accept that they have no parenting responsibilities with respect to A.W. They lack insight into the consequences of their actions,” wrote the judge.
Princewill says the decision is a correct one because the mother, as the parent with custody, has the right to make important decisions for the child.
“It’s her responsibility to make those important decisions for child,” she says.
During a separation, there are a number of legal matters a couple must deal with. These range anywhere from spousal support, child support, family property etc. There are two methods in resolving your family law dispute: courts or alternative dispute resolution (ADR). The Divorce Act, the Family Law Act, the Children’s Law Reform Act and the Child and Family Services Act, contain much of the law that applies to families in addition to case law judgements that can be useful to some.
When choosing whether to resolve your family law dispute in the court or by ADR, it is important to analyze your situation and choose the method that will be effective for you and your circumstances.
Resolving your family law dispute in the courts is used in dire circumstances where an urgent matter needs to be resolved, the partners cannot reach an agreement, abuse/violence is involved and bulling or threats are made.
The Family Law Rules govern the way an individual should proceed with their case in Ontario. Rule 8 sets out how to initiate a case and Rule 10 sets out how to respond to a case started against you. There is a rule for every step of a court proceeding that is enforced on everyone engaging in using the courts to resolve their family law dispute. Each individual is given a chance to receive and respond to the requests of the court and a judge will be able to decide the case based on evidence and the law. The judge acts in an impartial and neutral manner where he/she will only decide on the issues brought before them. Therefore, it is important to talk to a lawyer and have legal representation during a court proceeding to ensure you are aware of your rights and to use their expertise to obtain them. Otherwise, you risk having to pay the other party’s legal fees against you.
When commencing a family law case, the applicant must complete an application telling the court what they are requesting. This can be anything from custody of a child, child or spousal support, etc. The application outlines the history of your family/case and facts that will support your claim. Depending on the information provided in the application, the court may order the parties to attend a Mandatory Information Program that provides information about separation, the impact it has on children, ADR methods, legal issues and court proceedings. The applicant must also provide a copy of the application to the respondent. This is called service. There are specific timelines to follow when using a court proceedings because once the deadline is past it becomes extremely difficult to continue with your claim.
There are many pros and cons when proceeding with the courts to resolve your family law dispute. Some of the pros, as discussed above, include not reaching an agreement, requiring an enforceable agreement made by the judge, abuse/violence cases etc. The cons of continuing with a court proceeding include the cost, the time it takes to get a court date before a judge, an unpredictable outcome and the stress that tags along.
Before deciding that going to court for your family law matter is right for you, it is important to talk to a lawyer. A lawyer has the expertise to effectively guide and represent you. They can even help you settle a dispute before going to court and outline a method that is best for you. Going to trial can be a very expensive and stressful period for some, a lawyer can intervene in the middle of the court process and help reach a settlement before trial and/or represent you during trial.
Alternative Dispute Resolution (ADR)
ADR is a method whereby informal arrangements can be made without the use of litigation. The couple can negotiate or work with a mediator or arbitrator. There are different methods under ADR to resolve a dispute. But note that this is a choice and neither party can be forced into using ADR. If you do choose to use ADR it is important to contact a lawyer because you risk losing rights that you are entitled to if you do not.
There are many benefits to using ADR rather than going to court. The individuals have more control over the matter and can express their concerns and decisions, it is much faster and cheaper than court, and is less stressful. ADR benefits those who can be open and honest with their partner and can work out the issues that need to be resolved. But as discussed above, it does not suit all family law disputes. If your partner chooses not to listen to you, or you two cannot cooperate, abuse/violence is involved, bulling/threats are involved or your partner has more power than you; can all be reasons why to resolve your dispute in the courts.
There are four types of ADR- negotiation, mediation, arbitration and collaborate family law. We will briefly explore these methods.
Negotiation is a common form of ADR which provides for an informal setting where you and your partner talk to reach an agreement. You have the choice of retaining the assistance of lawyers to speak on your behalf and reach a spoken agreement. This is then transcribed into a written document, signed by the couple. It is important to transcribe the spoken agreement because it is common to move from negotiation to court and a spoken agreement will not be enforceable.
When engaging in mediation, the couple seeks the assistance of a mediator who is trained to deal with conflicts. Mediators are usually social workers, psychologists or lawyers. They help both partners talk to each other to reach an agreement in an impartial manner. They can suggest different methods of resolving the dispute and it is up to the individuals whether or not to use their advice. The assistance of a lawyer is very beneficial because usually, the lawyer does not accompany you to the mediation. Therefore, it is essential to know what your rights and obligations are before going into the mediation so that you effectively know how to reach a fair agreement.
If you are not pleased with how the mediation went, you have the autonomy to pursue other methods of resolving your dispute. However, should you and your partner reach an agreement during the mediation, it is imperative to show the written agreement to your lawyer before signing it. This is a common mistake made by individuals during this proceeding because once you have signed the agreement you have consented to all the terms present and the other party can effectively enforce them against you.
During arbitration, the couple hires an arbitrator and proceeds in a method similar to court, however an arbitrator cannot grant divorce or an annulment. They can decide on custody, support, access and how to divide any family property. It is imperative to know your rights when dealing with an arbitrator, because like the courts, an arbitrator can only decide on issues that you ask them or bring to their attention. If you do not, you risk losing your rights.
Retaining the assistance of a lawyer is very important when engaging in arbitration. While arbitration may be designed to be non-binding, in most cases the arbitrator’s decisions must be obeyed and they can be enforced.
Collaborative Family Law
This is a new form of ADR, where the individuals and their lawyers work together to resolve the dispute. This method is faster and cheaper than going to court and is a different way for lawyers to work because it is informal. The individuals can effectively use this method to make children a priority, use the expertise of their lawyers, and reach a mutually acceptable agreement. This method only works effectively if the couple is willing to reach an agreement and respect each other. Usually, only those who can hire a lawyer should engage in this type of ADR.
If an agreement is not reached during Collaborative Family Law, then the individuals must proceed to court with new lawyers to represent them. Note that Legal Aid Ontario will not provide a lawyer for collaborative family law.
How we can help
As displayed by the different methods to resolve your family law dispute, a lawyer is not always required during a proceeding. However, in family law cases, it is very important and beneficial to get the assistance of a lawyer because as a party to the proceeding, this is very emotional and stressful. It is common for a party to have cloudy judgement because of the emotional suffering that occurs as a result of engaging in any of the above named resolution methods.
A lawyer can act as a good representative to effectively argue and negotiate the best possible agreement/settlement for you and your interest. At A. Princewill Law Firm, we have the expertise, experience and knowledge to outline your rights and obligations for you. We will always support your best interests and our understanding of these processes makes it easier for us to represent everything you want and interests that you may not even be aware of. Our expertise will successfully guide you to a practical and satisfying agreement. We will walk you through the best approach for you and your situation.