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Amending a Court Application, Answer or Reply – when to give consent

February 19th, 2021 by

 

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 plead 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 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.

GETTING MARRIED DURING COVID-19 PANDEMIC

February 11th, 2021 by

Getting married? CONGRATULATIONS! A wedding is always an exciting event that brings families and friends together. Unfortunately, COVID-19 has forced couples to either postpone their wedding indefinitely or make alternative plans. However, you may still be able to get married and enjoy the exciting journey ahead of you.  

Despite the Ontario government stay-at-home order, weddings are an exemption for leaving home, within limits of course. To ensure your marriage is legally valid, Ontario’s Marriage Act requires that the couple must have the following:

  • a licence, 
  • an officiant and two witnesses, and 
  • the wedding must take place “in the presence of” the officiant and the witnesses. 

The main point to note here is that in order to have a valid marriage, whether it is conducted virtually or in person, ensure the witnesses and officiant are physically present. 

Despite COVID-19 causing gathering restrictions, the closure of banquet halls and event spaces, and prohibiting indoor and outdoor dining at restaurants, there is still hope for you to have a little celebration! To help with the planning of your wedding during these unprecedented times, the City of Toronto has provided a guide that considers public health orders. 

Below are 6 points to note when planning your wedding during COVID-19:

  1. If postponing the date or a virtual wedding is not an option, you can consider an outdoor ceremony, a tented reception, a smaller indoor wedding, or even a drive-in ceremony where guests remain in their vehicles. Vehicles must remain two metres apart and can only contain members of the same household.
  2. During your planning stages continue to stay informed of pandemic issues, inquire about details and ask questions to the service providers you hire for your special event, review any contracts and insurance policies for your own protection, and be mindful of COVID-19 Guidelines for Indoor & Outdoor Events & Gatherings.
  3. Limit the number of guests to the following based on the type of event:
Wedding religious service, rite, or ceremony Wedding reception / social gatherings associated with the wedding ceremony or religious service
Indoor 10 people or less, including officiant/staff  

None permitted*

(*Exception for members of a single household or one person from outside the household of a person that lives alone.)

 

Outdoor 10 people or less, including officiant/staff 5 people or less

 

  1. Masks are mandatory; however, the couple may remove their masks during the wedding ceremony. At all other times, a mask must be worn when indoors and when physical distancing is difficult.
  • Keep guests informed of precautions you are taking and advise them of the mandatory requirement for them to wear masks prior to attending the event. 
  • Masks may be removed by performers when behind a physical barrier that has a window through which the music can be heard (e.g. singing or playing wind/brass instrument), or engaging in physical activity (e.g. dancing).
  • Children under two years of age, people with health issues that make wearing a mask difficult, and those who are unable to put on a mask without assistance are exempted from wearing a mask.
  1. A wedding is not a wedding without music. However, singing, and musical wind instruments can project respiratory droplets further than two metres and are higher risk activities. Therefore, dancing, singing and the live performance of brass or wind instruments are prohibited where food is served. The good news is that you can use pre-recorded music or virtual performances. 
  2. Finally, keep an attendance list for contact tracing and encourage your guests to download the COVID Alert app Opens in new window. If a guest becomes ill during the service/reception, ask them to go home and self-isolate.

MIND OVER MOOD – MENTAL WELLNESS AND YOU

January 28th, 2021 by

Mental wellness is extremely important. We often ignore or minimize it. People give unhelpful suggestions like “just get over it!” But you know it’s not that simple. You are trying and it is immensely difficult. The COVID-19 pandemic has emphasized its importance even more with you being cut-off the people and experiences that brought you some peace and joy. Add to that the social justice issues that everyone seems to be talking about even more lately such as racism against Blacks, indigenous and people of color, and let’s not forget all of the political drama in the United States; it’s no wonder you feel even more anxious and depressed.

Self-care is so important. Your mental wellbeing matters just as much as your physical wellbeing. I realize mental wellness may mean something different for each person. For some, it may mean simple rest and relaxation, and for others, mental well-being could include having a sense of purpose, strong relationships, feeling connected to others, having a good sense of self, and/or coping with stress.[1]  The World Health Organization defines mental-wellbeing as “a state of well-being in which the individual realizes his or her own abilities, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to his or her community.”

I know right now you may be limited in those you can have contact with given these seemingly unending lockdowns and that is why I am providing you with these resources so you can get the help you need.

The main thing I want you to remember is you are not in this alone. There are many organizations available across the GTA to support you and below are some of those resources to help you start your journey toward mental wellbeing. While on this journey, breathe, utilize your resources, and keep going because there is a light at the end of the tunnel.

Resources for Domestic Violence:

Signal For Help | Use Sign to Ask for Help | Canadian Women’s Foundation – “Signal for Help” is a simple one-handed sign someone can use on a video call. It can help a person silently show they need help and want someone to check in with them in a safe way.”

www.sheltersafe.ca/  – Most shelters on this site have staff available 24/7 to answer your call. You DO NOT need to stay in a shelter to get help. On the sheltersafe.ca map, click on the shelters located in the area where you wish to find help. Shelter workers will maintain confidentiality and advocate for you in the complex web of services you may need to access.

endingviolencecanada.org  – a national non-profit organization whose main purpose is to educate and respond to gender-based violence at the national level. There are many resources provided on the site that are available across provinces and territories.

Resources for elder abuse: www.canada.ca or COVID-19: Seniors & Vulnerable People – City of Toronto

Resources for Youth, children, and child abuse:

kidshelpphone.ca –or crisistextline.ca by calling 1-800-668-6868 or texting 686868

Mental health support: get help – Canada.ca – offers a variety of services to Canadians such as Kids Help, Hope for Wellness, and Crisis Service Canada.

Homepage – Mental Health Toronto  – This website can help you find mental health services for infants, children, youth, and families in your community or call 1-866 585 6486.

Good2Talk, Post-Secondary Student Helpline – 24/7 – Good2Talk is a free, confidential support service for post-secondary students in Ontario. By calling Good2Talk at 1-866-925-5454, students can receive information and referrals about services and supports for mental health, addictions, and well-being on and off campus and speak anonymously with a professional counselor.

Post-secondary students can also access free, text-based support through Good2Talk’s partnership with Crisis Text Line powered by Kids Help Phone. By texting GOOD2TALKON to 686868, students can chat with a trained volunteer Crisis Responder.

Additional Resources include:

Ontario 211 | Community and Social Services Help Line (211ontario.ca) – offers information and services via chat, phone, or email based on a variety of needs such as food, employment, seniors, transit discount, social services, etc.

Counselling – Region of Durham – Family Services Durham provides counseling and mental health support and services by telephone to people living or working in Durham Region. You may access services, by calling 905 666-6240 or 1 866 840-6697.

COVID-19: Mental Health Resources – City of Toronto – The City of Toronto has partnered with ten organizations to help connect residents to free telephone, text and online mental health support during the COVID-19 pandemic.

Mental Health Archives – CMHA National – Canada Mental Health Association has locations across the GTA with a mission to “facilitate access to the resources people require to maintain and improve mental health and community integration, build resilience, and support recovery from mental illness.”

Food Aids:

Ontario – Canadian Red Cross – The Canadian Red Cross launches Toronto Emergency Food Assistance – Ontario – Canadian Red Cross

Food Banks Canada – Home – Food Banks Canada is a national charitable organization dedicated to helping Canadians living with food insecurity.

For lawyers:

LAWPRO SUPPORT – The PracticePRO program provides risk management, claims prevention, and law practice management information to Ontario lawyers to help them meet challenges.

  • Wellness and Balance:  The PracticePRO program promotes wellness and encourages lawyers to manage stress and achieve a healthy and balanced lifestyle. Together with the Law Society of Ontario, LawPRO provides financial support for the Member Assistance Program (MAP) for Ontario lawyers, law students, licensed paralegals, and their families provided through Homewood Health.

The Mindful Lawyer CPD SeriesLawyers are remarkably efficient at taking care of clients, transactions, cases, files, and juggling all of the pressures that come along with impossible deadlines, high-stake deals and endless responsibilities. Take part in the Mindful Lawyer Series from the OBA and reap the benefits in your professional and personal life.

Our team at AP Lawyers care about your mental wellbeing.  Don’t suffer in silence. We’re here for you. 

[1] “Mental health: What is it, really?” <https://cmha.ca/blogs/mental-health-what-is-it-really>

*** List of resources collated by Tara Seosankar