FAMILY COURT ISSUES ANOTHER STERN WARNING TO WARRING PARENTS (AND THEIR LAWYERS). A MUST-READ FOR ANYONE FACING FAMILY COURT LITIGATION.

The Family Court has recently issued another stern caution and warning to those embroiled in Family Court litigation, including the lawyers who represent them. 

This important guidance is in Alsawwah v. Afini, 2020 ONSC 2883, at paragraph 108, and is a must-read for every person who finds himself or herself in the challenging landscape of the Superior Court - Family Division: 

"In the hopes of lowering the rhetorical temperature of the future materials of these parties and perhaps those of others who will come before the court, I repeat these essential facts, often stated by my colleagues at all levels of court, but which bear constant repetition:

1.            Evidence regarding a former spouse’s moral failings is rarely relevant to the issues before the court.

2.            Nor are we swayed by rhetoric against the other party that verges on agitprop.

3.            Our decisions are not guided by concerns of marital fidelity. A (nonabusive) partner can be a terrible spouse but a good parent. Everyone is supposed to know this, but all too often I see litigants raise these issues for “context”.

4.            Exaggeration is the enemy of credibility. As it is often said, one never gets a second chance to make a first impression. If that impression, arising from a parties’ materials or argument, is one of embellishment, that impression will colour everything that  emanates from that party or their counsel.

5.            Affidavits that read as argument rather than a recitation of facts are not persuasive. They speak to careless drafting.

6.            Similarly, hearsay allegations against the other side which fail to comply with r. 14(18) or (19) are generally ignored, whether judges feel it necessary to explicitly say so or not.

__________________

Note by us: Sub-Rules 14(18) and (19) read:

AFFIDAVIT BASED ON PERSONAL KNOWLEDGE

(18) An affidavit for use on a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit.  O. Reg. 114/99, r. 14 (18).

AFFIDAVIT BASED ON OTHER INFORMATION

(19) The affidavit may also contain information that the person learned from someone else, but only if,

(a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true; and

(b) in addition, if the motion is a contempt motion under rule 31, the information is not likely to be disputed.  O. Reg. 114/99, r. 14 (19).

_________________________

7.            A lawyer’s letter, whatever it says, unless it contains an admission, is not evidence of anything except the fact that it was sent. The fact that a lawyer makes allegations against the other side in a letter is usually of no evidentiary value.

8.            Facts win cases. A pebble of proof is worth a mountain of innuendo or bald allegation.

9.            Relevance matters. If the court is dealing with, say an issue regarding parenting, allegations of a party’s failures regarding collateral issues, say their stinginess or the paucity of their financial disclosure, are irrelevant and counter-productive. They do not reveal the dark soul of the other side or turn the court against the allegedly offending spouse. Rather, they demonstrate that the party or their counsel is unable to focus on the issue at hand. Often those materials backfire leading the court to place greater trust in the other side.

10.          One key to success in family law as in other areas of law is the race to the moral high ground. Courts appreciate those parties and counsel who demonstrate their commitment to that high ground in both the framing and presentation of their case.

11.          While dealing with that moral high ground, many capable counsel advise their clients against “me-too” ism. One side’s failure to obey a court order or produce necessary disclosure does not give licence to the other side to do the same. Just because the materials of one side are incendiary or prolix, that does not mean that the other side is required to respond in kind. Judges are usually aware when a party has crossed the line. Showing that you or your client does not do the same is both the ethical and the smart thing to Do." 

 

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CKL SEPARATED PARENTS - DID YOU KNOW YOU CAN SET UP AND ADJUST CHILD SUPPORT ONLINE DURING THE PANDEMIC? NO FAMILY COURT REQUIRED. SEE IF YOU QUALIFY - WHAT YOU NEED TO KNOW.

Did you know you can potentially set up, or adjust, child support payments online, without having to endure the Family Court process? 

How it works

To set up or update child support online, you and the other parent or caregiver may have to provide your income information. It is used to calculate the amount of child support to be paid.

When one parent sets up or updates child support online, the other parent will be notified by mail and must respond online within 25 calendar days. Both parents may also be required to complete a consent form to allow the Canada Revenue Agency to share their income information with the service.

Once you and the other parent or caregiver have provided the necessary income information, both of you will be mailed a Notice of Calculation or Recalculation. This document includes the new child support arrangement, including the amount to be paid. It will be enforced just like a court order.

For more information about setting up or updating child support online, please call the Child Support Service Contact Centre at 1-866-656-7753.

If the other parent or caregiver does not respond

If the other parent or caregiver does not respond to the request, the service may automatically update your child support based on the information you provided.

This will only happen if:

  • you set up your existing child support in court or online

  • your child support case is not currently before the court

  • you are not changing the special expenses covered in your child support

If the parent or caregiver who did not respond pays child support, the service may assume that their income has increased.

Who can use the service

You can set up or update child support online if:

  • one parent or caregiver lives with the child or children 60% of the time

  • you don’t currently live with the other parent or caregiver

But, if you’re setting up child support, the other parent or caregiver can deny your request to use the online service. In this case you will have to use the court process or arrange child support in a written agreement.

Talk to the other parent or caregiver before submitting an application to make sure that they agree to use this service.

You cannot set up or update child support online if:

  • either parent or caregiver, or any of the children, live outside of Ontario

  • any children are over 17.5 years old or married

  • there is split or shared custody of the child or children

  • the child support order being updated was based on undue hardship or imputed income

  • the parent or caregiver who currently pays or will pay for child support:

    • is self-employed

    • earns more than $150,000 or less than $12,000 annually

    • earns income in cash

    • is a partner or majority shareholder of a business

    • earns most of their income as a landlord or seasonal worker (e.g., employed in snow removal, fishing or landscaping)

If you are the parent or caregiver who pays child support you can choose whether to provide your income through tax information or pay stubs.

If you are the parent or caregiver who receives child support, and you don't think the other parent’s income can be accurately shown by either pay stubs or tax information, you should not use this service.

Required documents

Before you start setting up or updating child support online, make sure you have:

  • your Social Insurance Number or Temporary Tax Number

  • a current mailing address for the other parent or caregiver

  • contact information for the person responsible for payroll at your workplace (if you’re the person who currently pays or will pay child support)

  • an electronic copy of your current court order or separation agreement, or information from your current Notice of Calculation or Recalculation

If you didn’t file your taxes last year, you will also need either:

  • your three most recent pay stubs, or

  • the most recent statement of income from employment insurance, social assistance, a pension, workers compensation or disability payments

Start using the service

Start using the online service to set up or update child support.

Set up or update child support

Cost

There is a non-refundable $80 fee each time you use the service, whether you’re setting up or updating child support.

Accepted forms of payment

Visa, Mastercard or Interac® Online

No refunds for inaccurate information

You will not be refunded the $80 fee if the application cannot be processed due to inaccurate information. This includes when the other parent or caregiver replies that information is not accurate in the original application.

Fee waiver

You may be eligible to have the application fee waived, if your household (you, your spouse and children) are considered low-income. You can apply for the fee waiver in the online application.

Consulting a lawyer

Consult a lawyer if you’re still unsure about setting up or updating child support online. If you can’t afford a lawyer, you can find out if you qualify for legal aid.

Contact the Child Support Service

For more information about setting up or updating child support online, please call the Child Support Service Contact Centre at 1-866-656-7753.

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RELATIONSHIP BREAKDOWN - A MARRIED SPOUSE'S RIGHT TO "EQUALIZATION" MONEY - THE BASICS.

When legally married spouses separate with no reasonable prospect that they will resume cohabitation, the spouse whose net, financial worth is less than the other is likely entitled to an “equalization” payment.

An equalization payment is intended to balance and account for the inherent joint responsibilities, whether financial or otherwise, the spouses shared during the marriage, pursuant to sub-section 5(7) of Ontario’s Family Law Act (the “FLA”).  

The separated spouse whose net worth accumulated during the marriage is less is generally to one-half the difference of the spouses “net family properties”, pursuant to sub-section 5(1) of the FLA.

Net family property means the value of all the property, except property under sub-section 4(2) of the FLA (“excluded property”), that a spouse owns on the valuation date (or “date of separation”), after deducting the spouse’s debts and other liabilities and the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage. 

Usually, a spouse that is separated or divorced would make a claim for equalization when they make an Application (Form 8) in the Superior Court of Justice.

Notably only married spouses are entitled to claim equalization against the other.

Equalization is a unique property claim that the sub-section 5(1) of the FLA confers to married couples exclusively - it is a personal right.

An equalization claim is different from other property rights to which a person may be entitled otherwise upon a separation or divorce, arising from joint ownership, shares in a business or title to real property.

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THE COURT'S RECENT STERN WARNING TO SEPARATED PARENTS - ACT REASONABLY DURING THE PANDEMIC, OR FACE THE CONSEQUENCES SOON

A stern warning recently by the Family Court to separated parents who act unreasonably, uncooperatively or who exercise self-help: 

"So perhaps I can go one step further.  Perhaps I can give high conflict parents a bit of a warning.

 

a.      Just because a Triage judge decides an issue isn’t urgent, it doesn’t mean the issue isn’t important.  It simply means we have to prioritize which issues we currently have the resources to deal with.

b.      The suspension of most court activities during the COVID-19 crisis means that – temporarily -- separated parents are largely going to be on “the honour system.”  

c.      We’re counting on parents to be fair and helpful with one another.  To rise to the challenge and act in good faith.

d.      Because now more than ever, children need parents to be mature, cooperative, and mutually respectful. In these times of unspeakable stress and anxiety, children need emotional reassurance from both parents that everything is going to be okay.

e.      How parents conduct themselves during this time of crisis will speak volumes about parental insight and trustworthiness.

f.      Your reputation will outlast COVID-19.

g.      So please don’t try to take advantage of the current situation.

h.      In the long run, self-help will turn out to be a big mistake."

Case: 

McNeil v. McGuinness, 2020 CarswellOnt 4833 (Ont. S.C.J.) 

 

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CKL RESIDENTS - RELATIONSHIP BREAKDOWN DURING COVID-19? WAIT - BEFORE YOU SETTLE ANYTHING - READ THIS AND BE VERY CAREFUL.

When two married spouses separate, among other issues they must resolve, they must “equalize” their “net family property”, respectively.

Basically, the spouse whose net worth increased more between the date of marriage and the date of separation must pay to the other spouse one-half of the difference in that increase over the other spouse, subject to a few rules and exceptions that often cause disputes in and of themselves.

If Sharon’s net worth increased by $10 during the marriage, but Mike’s, her married spouse’s, net worth only increased by $5, Sharon would legally be required to pay to Mike $2.50, thereby equalizing their net family properties.

Of course, it is more complicated than this, as special rules and exemptions also apply, but this is the basic family law requirement, unlike in most of the United States, where a married spouse is entitled to half of the combined assets and liabilities, generally.

COVID-19 now casts an uncertain shadow over this family law rule.

Assets have already substantially lost value during the pandemic, particularly investment holdings and likely the value of matrimonial homes, farms, etc.

The key dates are the date of marriage and the date of separation (referred to as the “valuation day”).

So, if the date of separation was early on during, or even before, the pandemic affected Ontario, there is substantial risk involved with utilizing the date of separation fair market value for assets to compute the equalization of net family properties.

It may create unfairness to the higher net worth spouse, forced to solely burden the economic impact of the virus, particularly if a settlement or trial does not take place for several months after the pandemic struck us.

If an asset is jointly-owned, the issue is less likely to arise, as both spouses typically, subject to a few exemptions, bear the prevailing market conditions post-separation. 

Furthermore, there is so much uncertainty about the future of the economy and market forces, the risk may actually be increasing as time passes during the pandemic.

A higher net worth spouse in these circumstances does, at law, have a remedy to assert to try to gain some relief.

Under the legislation for Ontario, the Court is empowered, subject to strict conditions, to reduce or vary an equalization payment by the higher net worth spouse to the other.

This is commonly referred to as an “unequal division” of net family properties. 

The relevant section of Ontario’s Family Law Act reads:

Variation of share

(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;

(d) a spouse’s intentional or reckless depletion of his or her net family property;

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g) a written agreement between the spouses that is not a domestic contract; or

(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.  R.S.O. 1990, c. F.3, s. 5 (6).

Purpose

(7) The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6).  R.S.O. 1990, c. F.3, s. 5 (7).

The test to be given an unequal division by the Family Court is high and onerous. 

Essentially, applying the regular and usual family law must, in the special circumstances, be shocking and unconscionable to the Court.

The question is: does COVID-19 fall into that high threshold potentially?

Certainly the 2008 recession was considered by the Court to justify deviating from the otherwise normally-applied family law for equalization of net family property.

It seems, then, that COVID-19 would also be proper grounds to request an unequal division, in the right circumstances. 

Indeed, a spouse’s net worth may be substantially impacted by the pandemic between the date of separation and the time when the Court holds a trial, or there is a settlement reached.

What to do?

If a spouse has experienced a material decline in his or her net worth since the onset of the pandemic, before or after a separation date, careful consideration needs to be given to possibly seeking an adjustment to how the law would otherwise, normally be applied by the Court.

It may be that, due to the virus, there are justifiable reasons to assert that the high test has been met to warrant a lesser property settlement payment than would otherwise be required.

In addition, there are other important considerations before resolving a relationship breakdown during, or following, the pandemic, particularly relating to the content of the separation agreement that may be entered. 

Below is an excellent list of issues that need to be carefully reviewed before finalizing any settlement of a relationship breakdown during, or related to, the pandemic, published on April 20, 2020 by Lorne Wolfson, a lawyer at the Toronto firm, Torkin Manes: 

  1. In the absence of formal screening by a qualified third party screener, a family lawyer cannot know if his or her client is entering an agreement under duress or undue influence, the risk of which is particularly heightened if the parties are still co-habiting under the same roof. The standard solicitor’s certificate, “My client is not suffering from duress or undue influence,” should be amended to reflect the particular circumstances in each case.
  2. Property settlements that rely on asset valuations or support arrangements that are based on current or proposed incomes should be viewed with caution since the value of assets and the level of incomes could suffer dramatic changes within days of finalizing a settlement. For property division, an “if and when” asset division may protect both parties against an unfair and unexpected drop in the value of a major asset. Support arrangements should clearly articulate the income assumptions on which the settlement is based, so that there is no doubt if a future decline in income constitutes a “material change in circumstances” from that which prevailed at the time the agreement was signed.
  3. In order to avoid a dispute in the future as to what constitutes a “material change in circumstances,” the agreement should contain an acknowledgment that a change in either party’s income of X per cent or $Y is deemed to constitute a “material change.” The agreement should also formally acknowledge that a change in circumstances that was foreseeable at the time the agreement was signed may still constitute a material change in circumstances.
  4. When an agreement is being signed without full financial disclosure or without all of the information that would usually be required, it should clearly be expressed to be a temporary, without prejudice agreement that will stay in force until a future date or event (a further agreement, a future variation or review, or when the courts resume regular operations).
  5. Non-variable support agreements should be viewed with particular caution. In the past, many payors were prepared to pay a lump sum in exchange for a full and final spousal support release. Today, such agreements may be more fraught with risk. Even if the non-variation clause is drafted to permit a review if there is a “catastrophic” change in circumstances, that exception still leaves open the possibility of a dispute as to what constitutes a “catastrophic change.”
  6. Variation in child and/or spousal support can also be justified even if there have been no changes in the incomes of the parties. For example, s. 7 expenses that were previously being shared (childcare, summer camp, activities and access costs) may no longer be incurred. In the absence of these expenses, the level of both child support and spousal support may need to be adjusted.
  7. Given the health threat posed by the current pandemic, security for support and equalization payments takes on enhanced importance. The presence or absence of life insurance, the appropriate level of insurance and what insurance can be obtained at what cost if either party loses his or her employment are issues that should be canvassed.
  8. In a majority of cases, the time the children spend in the care of each parent will not need to be changed. However, where parents are now working from home, are not working at all because of the loss of their employment or the division of parenting time necessitates a change to the residential schedule, the impact of these changes on child and/or spousal support needs to be carefully considered.



 

 

 

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IF I'M LAID OFF, OR CANNOT WORK, BECAUSE OF COVID-19, DO I HAVE TO PAY MY SPOUSAL SUPPORT? WILL THE COURT HELP ME OUT DURING THE PANDEMIC? WHAT YOU NEED TO KNOW.

WHAT CAN BE TAKEN TO COURT CURRENTLY?

Firstly, during Ontario’s State of Emergency, all limitation periods have been suspended. If you have a case that must be commenced, legally, by a certain date, that date is now extended at least until after the State of Emergency is ended.

Secondly, the Ontario Courts have made it very clear they are depending upon cooperation between parties to limit the number of hearings required, and avoid the need for Court proceedings whenever possible.

Thirdly, only “urgent” matters will be heard by the Court – whether a matter is “urgent” will require initial judicial review. If that threshold is passed, the Court will give directions for how the issues will legally be determined.

Urgency will be determined on a case-by-case basis. Matters which have been found to be urgent include those which:

  • were considered urgent prior to the suspension of Court operations;
  • are directly related to the COVID-19 pandemic;
  • may interrupt the closing of a real estate transaction;
  • involve a judgment debtor attempting to remove assets;
  • involve the expiry of a government-issued permit; and
  • involve termination of commercial leases.    

The Court has also in some cases extracted urgent issues from within broader legal matters.

Even where a matter is found to be urgent initially, the Court is likely to initially appoint a Justice to hear the matter and convene a case conference to determine the process to be followed for the remote hearing.

In some cases, the Court may also relax the legal formalities that would otherwise be strictly enforced, like how evidence is accepted by the Court – a case-by-case approach is being taken.

IS VARYING OR CHANGING SPOUSAL SUPPORT CONSIDERED URGENT?

COVID-19 may have removed or reduced a spousal support payor’s income, particularly if he or she owned/operated, or worked for, a “non-essential” business, per the Ontario Government’s continuing emergency order(s).

However, while that is certainly an urgent issue financially speaking, it may not be urgent legally.

Whether a spousal support payment may be varied or changed depends on several factors, including:

  • whether the parties were married to each other and, if so, the federal Divorce Act applies;
  • the specific language or wording of the parties’ separation agreement or Court order;
  • whether there has been a “material change in circumstances” that has some degree of continuity, rather than a temporary change, triggering the ability to review the support issues; and
  • other factors underlying the relationship when the agreement was signed or the Order was made and currently, such as the recipient’s need, the payor’s ability to pay, etc.

So far, the Court takes the position that support payor’s request to vary or change his or her spousal support payments does not qualify as an urgent matter in Family Court.

Rather, the Court indicates that requests to vary or change spousal support payments, if legally permitted to do so, may be made by payors retroactively at a later time.

There have been a number of cases to date indicating the Court’s position on this issue [Purdy v. Purdy, 2020 CanLII ONSC 1950; Baker v. Maloney, 2020 CanLII ONSC 1929, etc.]

Accordingly, both parties must use their best efforts to work together, to try to reach a temporary arrangement during the pandemic, even on a “without prejudice” basis.

Neither party will benefit from a surge in Family Court proceeding arising from COVID-19, when the Court’s operations expand.

While the pandemic continues, absence exceptional circumstances, neither a receiving nor paying party is likely to utilize the Family Court to demand, or vary, spousal support payments.

These are not fault-based, or blameworthy, circumstances for the most part – the pandemic was reasonably unforeseeable by most parties who previously separated.

As a result, practical sense and pragmatism must prevail, failing which delayed, protracted and challenging litigation will likely ensue.  

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PARENTING DISPUTES DURING COVID-19 - THE CHILD IS PROTECTED BY THE CONSTITUTION, TOO - MINIMIZING RISK OF EXPOSURE IS ESSENTIAL

Section 7 of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11,.

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

During the COVID-19 pandemic, parenting disputes potentially trigger this constitution right; namely, security of the person, for not only the child or children at issue, but both parents, too. Canada’s Supreme Court has recognized and acknowledged this right for both in family-related disputes. 

To the extent the parents cannot co-operatively resolve their parenting arrangements by reasonable, mutual agreement, but rather one or both requests the intervention of the Family Court on the basis of urgency, the Court will be mindful of a child’s constitutional right to security of the person, which arguably includes limiting, or minimizing, exposure to COVID-19.

If a child is to be removed from the care of a parent, it must “only be done in accordance with the principles of fundamental justice which are found in the basic tenets of our legal system.”

These principles of fundamental justice are both substantive and procedural in nature.

The section 7 right of the security of the person is recognized judicially to protect both the physical and the psychological integrity of the individual [R. v. Morgenthaler, 1988 CanLII 90 (SCC)].  

Any judicial decision by the Court impacting the removal of a child from a parent’s care must incorporate a fair and reasonable hearing process by the Court [Kawartha-Haliburton Children Aid Society v. M. W., 2019 ONCA 316, paras. 68 and 69].

As noted by the Court in Ontario recently, “Given the above, I believe that the true test of our law and the fair administration of the law will be measured in how the most vulnerable in our society are treated and the administration of justice is dealt with in difficult times such as these.” [Children’s Aid Society of the Region of Peel v. M.G., 2020 ONCJ 167].

So, in any matter affecting the security of a child during the pandemic, the process for judicial determination must be both substantively and procedurally fair, not only for the child in question, but for the parents or guardians who cannot reasonably agree to the temporary arrangements during the pandemic.

 

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COVID-19 - SPOUSES - IF YOU SEPARATE RECENTLY BEFORE OR DURING THE PANDEMIC, BE CAREFUL! YOU MAY NOT HAVE TO PAY AS MUCH TO SETTLE PROPERTY - WHAT YOU NEED TO KNOW

When two married spouses separate, among other issues they must resolve, they must “equalize” their “net family property”, respectively.

Basically, the spouse whose net worth increased more between the date of marriage and the date of separation must pay to the other spouse one-half of the difference in that increase over the other spouse, subject to a few rules and exceptions that often cause disputes in and of themselves.

If Sharon’s net worth increased by $10 during the marriage, but Mike’s, her married spouse’s, net worth only increased by $5, Sharon would legally be required to pay to Mike $2.50, thereby equalizing their net family properties.

Of course, it is more complicated than this, as special rules and exemptions also apply, but this is the basic family law requirement, unlike in most of the United States, where a married spouse is entitled to half of the combined assets and liabilities, generally.

COVID-19 now casts an uncertain shadow over this family law rule.

Assets have already substantially lost value during the pandemic, particularly investment holdings and likely the value of matrimonial homes, farms, etc.

The key dates are the date of marriage and the date of separation (referred to as the “valuation day”).

So, if the date of separation was early on during, or even before, the pandemic affected Ontario, there is substantial risk involved with utilizing the date of separation fair market value for assets to compute the equalization of net family properties.

It may create unfairness to the higher net worth spouse, forced to solely burden the economic impact of the virus, particularly if a settlement or trial does not take place for several months after the pandemic struck us.

If an asset is jointly-owned, the issue is less likely to arise, as both spouses typically, subject to a few exemptions, bear the prevailing market conditions post-separation. 

Furthermore, there is so much uncertainty about the future of the economy and market forces, the risk may actually be increasing as time passes during the pandemic.

A higher net worth spouse in these circumstances does, at law, have a remedy to assert to try to gain some relief.

Under the legislation for Ontario, the Court is empowered, subject to strict conditions, to reduce or vary an equalization payment by the higher net worth spouse to the other.

This is commonly referred to as an “unequal division” of net family properties. 

The relevant section of Ontario’s Family Law Act reads:

Variation of share

(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;

(d) a spouse’s intentional or reckless depletion of his or her net family property;

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g) a written agreement between the spouses that is not a domestic contract; or

(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.  R.S.O. 1990, c. F.3, s. 5 (6).

Purpose

(7) The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6).  R.S.O. 1990, c. F.3, s. 5 (7).

The test to be given an unequal division by the Family Court is high and onerous. 

Essentially, applying the regular and usual family law must, in the special circumstances, be shocking and unconscionable to the Court.

The question is: does COVID-19 fall into that high threshold potentially?

Certainly the 2008 recession was considered by the Court to justify deviating from the otherwise normally-applied family law for equalization of net family property.

It seems, then, that COVID-19 would also be proper grounds to request an unequal division, in the right circumstances. 

Indeed, a spouse’s net worth may be substantially impacted by the pandemic between the date of separation and the time when the Court holds a trial, or there is a settlement reached.

What to do?

If a spouse has experienced a material decline in his or her net worth since the onset of the pandemic, before or after a separation date, careful consideration needs to be given to possibly seeking an adjustment to how the law would otherwise, normally be applied by the Court.

It may be that, due to the virus, there are justifiable reasons to assert that the high test has been met to warrant a lesser property settlement payment than would otherwise be required.

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COVID-19 - DO FULL CHILD AND SPOUSAL SUPPORT PAYMENTS CONTINUE? EVEN FOR NON-ESSENTIAL WORKERS? WHAT YOU NEED TO KNOW.

If your workplace has been ordered by emergency order to be shut down, or you have otherwise been unable to continue to work due to COVID-19, consideration should be given to ongoing child and spousal support obligations.

If a support payor is collecting the new CERB, the Family Responsibility Office cannot garnish that benefit, being $2,000 monthly taxable for currently a three-month period, to pay either child or spousal support.

In Ontario, loss of employ or income reduction involuntarily may invoke the ability for the support payor to request reduced support payments, depending on the circumstances.

Undoubtedly COVID-19 and the fallout, including the emergency orders, would qualify as a reasonably unforeseen event capable of triggering a review of the existing support arrangements.

Indeed, and despite that ostensibly we remain in the early days of the pandemic, the 2008 recession was accepted by the Ontario Courts as such an event, so it stands to reason the coronavirus would fall into the same category.

At law, an existing child support obligation may be varied in the event of a, “change of circumstances” since the child support order was made.

Likewise, a spousal support order may be changed in the event a, “change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order.”

While the law has yet to tackle COVID-19 in this context, it seems relatively straightforward that the pandemic would, at least on a prima facie basis, adequately support a request to vary a child or spousal support payment.

What should you do, as either the payor or recipient of either child or spousal support?

Firstly, review your Court order or your separation agreement.

Check for any clause in the document, usually in the support-related part of the document, that refers to a “material change in circumstances”, or language comparable.

If that clause exists, it may give the support payor legal ability to request a variation of the existing support payments.

Be watchful, in your Order or agreement, for any other clause that may require the existing support arrangements to continue unless they are varied by an order of the Court, or an arbitrator.

If that clause exists, it is likely the case that the support payor may be required to continue payment temporarily, while seeking to vary the existing arrangements.

In any event, the Family Court is largely only operating with skeletal resources and is mostly only entertaining emergency or urgent matters generally. While the Family Court is gradually expanding its services during the pandemic, it remains strained.

As a result, the Family Court is very unlikely to be receptive to a slew of urgent motions regarding the payment of existing child and/or spousal support, unless it qualifies for urgency and the test applied by the Court.

Accordingly, it is very important for both the support payor and the recipient to review their existing Order, or agreement, to know the framework they agreed to initially and what, if any, clauses may apply in the circumstances.

It is usually always better for two former partners to agree on a resolution, at least temporarily, rather than escalating the matter to the Family Court, which is, of course, very expensive and, at least for now, delayed in its process. 

If a support payor is a non-essential worker, or otherwise not working due to the virus, he or she should take reasonable steps to try to replace that income, including by applying for federal government-related benefits, such as the CERB or, if available, the Ontario government’s Emergency Assistance program, which is administered by most municipalities. Any steps taken should be recorded fully, as they may need to be used as evidence in future.   

 

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UPDATE TO SEPARATED AND DIVORCED CO-PARENTS - THE TEST YOU NEED TO MEET TO CHANGE THE EXISTING PARENTING ARRANGEMENTS DURING THE PANDEMIC - GENERAL CONCERN IS NOT ENOUGH

If any co-parent seeks to change the existing parenting arrangements arising from, or related to, COVID-19, the following test will be applied by the Family Court before the request will be considered:
[1] firstly, the co-parent must prove specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols;
[2] the co-parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc.
[3] both parents will be required to provide very specific and realistic time-sharing proposals, which fully address all COVID-19 considerations, in a child-focused manner; and
[4] Family Court judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed.
General concern about exposure is insufficient.
This is a very good time for both custodial and access parents to spend time with their child at home - this is strongly recommended by the Family Court during this turbulent times.
No co-parent should attempt to take any tactical parenting advantage over the other co-parent related to the pandemic. The Family Court will be loathe to sanction any such conduct.
Guerin v. Guerin, March 31, 2020, FC-20-576
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COVID-19 - FAMILY COURT AFFIRMS - SEPARATED AND DIVORCED CO-PARENTS CANNOT TAKE ADVANTAGE OF COVID-19 - EMERGENCY MOTIONS CAN BE MADE AND WILL BE DECIDED ON A CASE-BY-CASE BASIS

The Superior Court has affirmed that separated and divorced co-parents must work cooperatively, flexibly and together to parent children during this unprecedented crisis. 

The Family Court in this, and every other Ontario, jurisdiction is closed, except that only urgent and emergency matters will be considered, despite the extraordinarily strained judicial resources available currently. 

We have written on this very important issue previously.

Here are the links to those articles: 

"COURT RELEASE IMPORTANT DECISION COURT RELEASES IMPORTANT DECISION TO SEPARATED PARENTS - WORK TOGETHER - DO NOT USE COVID-19 TO TRY TO GAIN A TACTICAL PARENTING ADVANTAGE "- http://wardlegal.ca/31582887996636

- and - 

"COVID-19 - HELP TO SEPARATED/DIVORCED PARENTS" - http://wardlegal.ca/31582887996602

Justices loathe any parent who may attempt to take advantage of COVID-19 to gain a tactical advantage over a co-parent regarding the parenting of a child - that is clear. 

However, the Court acknowledges that we are in "unchartered territory" currently, without the benefit of proper knowledge and understanding of the true nature of the virus and the science surrounding it, making it very difficult to assess the potential risks to a child arising from co-parenting arrangements. 

The test is always the best interests of a child, which is very rarely served if a co-parent has no opportunity to be with the child - the Court regularly espouses this principle. 

While a co-parent is permitted to file an "Urgent Motion" seeking co-parenting relief, such as withholding access or seeking it, the Court will initially determine whether the motion is truly urgent, before it will consider evaluating the merits of each party's position in terms of the child's best interest and where and when the child should reside, or be. 

In every case so far, where a co-parent sought urgent relief by motion to the Family Court during the pandemic, the Court has ruled that the issue is NOT URGENT and granted no relief, except to dismiss the motion. 

On March 25, 2020, another Family Court Justice made the same decision. A copy of the decision is reproduced below, as it should be read carefully by every co-parent, particularly those that may have, or have the propensity to be engaged in, conflict on the parenting issues. 

In this case, there was no Court order in place regarding the parenting arrangements for the child, but the parents had established a pattern for their parenting (i.e., a status quo). The mother withheld the child, alleging to do otherwise would pose risk and harm to the child due to exposure to COVID-19. The mother's allegations appear in the decision below. 

The father disputed this and brought an urgent motion seeking reinstatement of the alleged, pre-existing (status quo) parenting arrangements. 

The Court is sympathetic to the circumstances, but does not grant the father any relief by deciding, at the initial threshold test, that the matter is not urgent. Accordingly, the best interests of the child generally, in terms of parenting time and place, were not addressed by the Court, due to the threshold test not being achieved. 

This decision below is a must-read for any co-parent concerned about a child during the pandemic. 

However, the Court will decide each case on a case-by-case - the Court has made that clear in its decisions. 

Therefore, if a co-parent can produce strong evidence that the other co-parent is not engaging in proper containment measures, as recommended and/or directed by our governments and applicable health officials, the Court may determine the matter is urgent, as the potential harm to the child is established and proved on an urgent basis; specifically, to protect the child from potential harm. 

In this case, however, the Court did not find the circumstances sufficiently urgent to allow the motion to proceed. 

What is clear, though, from the decisions of the Court is that a co-parent cannot attempt to utilize the COVID-19 crisis to gain some tactical advantage against the other co-parent. Even if a motion to address it may be determined to be not urgent, such conduct will most certainly be considered as soon as possible by the Family Court and may have negative consequences to the manipulating co-parent, and potentially the child. 

Here is the decision: 

COURT FILE NO.: 684/19
DATE: 2020/03/25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Douglas (Applicant) v. Douglas (Respondent)
BEFORE: Justice W.L. MacPherson
APPEARANCES: None
COUNSEL: Virginia Workman
Applicant
Bruce Macdonald
Respondent


E N D O R S E M E N T -- COVID 19 PROTOCOL

[1] AS A RESULT OF COVID-19 regular Superior Court of Justice operations are suspended at this time as set out in the Notice to Profession of the Chief Justice of Ontario. See the Notice to the Profession dated March 18, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/ [“the Chief’s Notice”].


[2] In accordance with the Regional Notice to Profession dated March 18, 2020 and replaced by a subsequent Notice dated March 24, 2020, electronic materials were filed by the applicant’s counsel through the Courthouse email address.

[3] This matter was referred to me as Triage Judge, for a determination of urgency and how this matter is to proceed.

[4] At this point I have received and reviewed the following:

a) Form 14B Motion Form dated March 24, 2020;
b) Affidavit of the Applicant sworn March 24, 2020 and various exhibits, including emails between the parties.
-
[5] The following evidence has been provided by the father:

a) The parties were married on August 26, 2011 and have been separated since December 10, 2018. There is one child, H , who is 6 1/2 years of age.
b) A court action was commenced by the father. A case conference was held on January 10, 2020. The Office of the Children’s Lawyer was requested to be become
involved, but they declined. There are currently no court orders in place dealing with parenting time.
c) The father alleges that the mother has demonstrated a pattern of denying access. Nevertheless, since in or about February 2019 the father has apparently had regular time
with the child on alternating weekends from Friday at 4 p.m. until the commencement of school on Monday and if it is a non-school day return of the child takes place at 8:00 a.m.
In addition, the father has had the child each Thursday following his access weekend from 4:00 p.m. to 7:00 p.m.
d) The father last had access to the child during the weekend of March 13, 2020 to March 16, 2020.
e) On March 18, 2020 the mother advised the father by email that the child would remain in her care. She noted concerns about the father’s exposure to the COVID-19 virus
at work (as an Assistant Manager at Lowe’s) ; the need for social distancing and that she was practicing same in her household, her workplace (location not disclosed) and the State of Emergency declared in the Province of Ontario; that travel from one parents’ home to the other (according to the father being a 14 minute car ride) was “unnecessary travel”; and the child having recently been ill (weekend of March 13, 2020 for which the mother had provided detailed treatment instructions as that was father’s access weekend.
f) When the father expressed his disagreement that the child should remain with the mother, she then raised additional concerns about potential exposure while in the father’s
care due to: a recent national hiring day at Lowes; he had allowed the child to play with another child; the father’s family travels and the need for them to be self-isolating and not involved in caring for H . No assurances by the father to address each of these concerns were acceptable to the mother who insisted that the child must remain in her care.
g) On March 19, 2020 the father attended at the mother’s home to exercise the regular Thursday access, but this was refused by the mother.
h) Facetime visits have been requested by the father and although it appears from the emails that the mother did offer such a visit on March 18, 2020, according to the father, as
of March 24, 2020, no such visits have taken place.

[6] The father has brought a motion seeking the reinstatement of status quo arrangements permitting the father to have access to H on alternating weekends and alternating Thursdays.

[7] The issue to be determined: Is this motion urgent?

[8] The COVID-19 pandemic is unprecedented. The situation changes daily, if not hourly. To address the risks posed by the virus, as those risks are known at any particular time, government authorities and public health officials issue directives to address the perceived risks.

[9] There is no game plan for how parents should react, and many are understandably worried for themselves and their families and confused about what to do in such an atmosphere. It is certainly expected that parents would act in the best interests of their own child which consideration must include not only the child’s physical well-being, but also their emotional wellbeing. Total removal of one parent from any child’s life must be exercised cautiously.

[10] This is uncharted territory for the court, as well. The safety and well-being of children and families remain the principal concerns for the court. However, the court must take guidance from the Chief’s notice that confirms that all court operations are suspended with the exception of those
that are urgent and emergency matters. The Chief’s notice defines such matters in the context of family files to be relative to “the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child.”

[11] The matter is understandably very important to the father. However, in my view it is not urgent nor is it an emergency. There is no indication that H ’s safety is at risk. While father’s counsel might wish to have this court interpret the mother’s actions as wrongfully retaining the child, from my perspective, the language used in the Chief’s notice was done purposefully to mirror the language under the Convention on Civil Aspects of International Child Abductions (the “Hague Convention”) and would not be applicable when the issue is parenting time. It may be that
there will be some limited scenarios involving an abduction of a child where relief is sought under the Children’s Law Reform Act, and a court finds such matter to be urgent. But this is not one of those cases.

[12] Within that context, I find that the motion is not urgent at this time.

[13] I would point out that in the Chief’s notice, the Chief Justice of Ontario called “upon the cooperation of counsel and parties to engage in every effort to resolve matters” during the period of suspension of regular court operations.

[14] The parties have experienced family law counsel representing them. It does not appear that mother’s counsel has responded to father’s counsel in any meaningful way to reach a reasonable resolution. He is encouraged to do so. Surely a complete termination of all contact between the
child and his father cannot be in the child’s best interests even in these unprecedented times.

[15] Finally, all counsel and parties must be aware that actions taken in these unusual circumstances, may very well be judged once court operations resume, as not being appropriate nor in the best interests of their children.

Justice W.L. MacPherson
DATE: March 25, 2020

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COURT RELEASES IMPORTANT DECISION TO SEPARATED PARENTS - WORK TOGETHER - DO NOT USE COVID-19 TO TRY TO GAIN A TACTICAL PARENTING ADVANTAGE

The COVID-19 pandemic requires urgent communication, co-operation and flexibility between separated and divorced co-parents.

Both co-parents and their child(ren) must isolate at home, like everyone else. This may require adjustments to existing parenting orders or arrangements. 

Please refer to our earlier article regarding advice and guidance to separated parents during this pandemic here: http://wardlegal.ca/31582887996602  

In the meantime, the Superior Court has released a very important decision, which all separated and divorced parents should read carefully, particularly if there is any parenting dispute arising from, or during, this pandemic. 

The Superior Court is closed, subject only to truly urgent motions, including for family law matters. 

Here, the mother sought to deny access to the father due to her concerns about COVID-19 and that the father would not take precautionary measures to protect the children. 

The Court's decision appears below. Notably, the Court denied granting any relief, as it was not deemed to be urgent. More importantly, the Court, if not expressly, than by inference, admonishes all parents against attempting to gain any tactical advantage related to the COVID-19 crisis. 

The Court's decision: 

March 24, 2020 Triage Judge Endorsement (COVID-19 Protocol)
SUPERIOR COURT OF JUSTICE, FAMILY COURT (HAMILTON) File #: 517/19
File Name: Ribeiro v Wright
Appearances: None

1 AS A RESULT OF COVID-19 which has caused the suspension of regular Superior Court of Justice operations at this time, as set out in the Notice to the Profession
dated March 18, 2020, this matter was referred to me as Triage Judge, for a determination as to how the file is to proceed. See the Notice to the Profession dated March 18, 2020 available at https://www.ontariocourts.ca/scj/covid-19-
suspension-fam/


2 Electronic materials were filed through the Courthouse email address: Hamilton.Family.Superior.Court@ontario.ca Upon the resumption of court operations all materials will be duly filed in the physical record at the courthouse.

3 At this point I have received and reviewed:

a. Emergency Notice of Motion of Applicant dated March 22, 2020 (with the return date marked “To Be Determined”.
b. Affidavit of the Applicant dated March 22, 2020.

4 The issue:

a. The parties have had joint custody of their now nine year old son since a final order in 2012. Primary residence has always been with the mother.
b. The father has always had access. In 2019 he brought a motion to expand parenting time. That motion is currently outstanding.
c. The most recent access arrangement is set out in a (consent) temporary order dated September 6, 2019. The father has access on alternate weekends from
Friday 6:00 p.m. to Sunday at 6:30 p.m.
d. The mother has brought an urgent motion to suspend all in-person access because of COVID-19.
e. The mother expresses concern that the father will not maintain social distancing for the child during periods of access.
f. In any event, the mother says she and her family are practicing social isolation in their home for the duration of the COVID-19 crisis. She doesn’t want her son leaving the home for any reason – including seeing the father.

5 I want to clearly explain why, as Triage Judge, I am not authorizing this matter proceeding as an urgent hearing at this time.


6 The health, safety and well-being of children and families remains the court’s foremost consideration during COVID-19. This is an extremely difficult and stressful
period for everyone.


7 On the one hand, in this case there is an existing parenting order. There is a presumption that all orders should be respected and complied with. More to the point, there is a presumption that the existing order reflects a determination that meaningful personal contact with both parents is in the best interests of the child.


8 On the other hand, the well-publicized directives from government and public health officials make it clear that we are in extraordinary times; and that our daily routines and activities will for the most part have to be suspended, in favour of a strict policy of social distancing and limiting community interactions as much as possible.


9 Parents are understandably confused and worried about what to do. Similarly, this is uncharted territory for our court system. We all have to work together to show flexibility, creativity and common sense – to promote both the physical and emotional well-being of children.

10 None of us know how long this crisis is going to last. In many respects we are going to have to put our lives “on hold” until COVID -19 is resolved. But children’s lives –
and vitally important family relationships – cannot be placed “on hold” indefinitely without risking serious emotional harm and upset. A blanket policy that children should never leave their primary residence – even to visit their other parent – is
inconsistent with a comprehensive analysis of the best interests of the child. In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.


11 In most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may
be necessary to ensure that all COVID-19 precautions are adhered to – including strict social distancing.


12 In some cases, custodial or access parents may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under
self -isolation for a 14 day period as a result of recent travel; personal illness; or exposure to illness).


13 In some cases, a parent’s personal risk f actors (through employment or associations, for example) may require controls with respect to their direct contact with a child.

14 And sadly, in some cases a parent’s lifestyle or behaviour in the face of COVID -19 (for example, failing to comply with social distancing; or failing to take reasonable health-precautions) may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered. There will be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.


15 Transitional arrangements at exchange times may create their own issues. At every stage, the social distancing imperative will have to be safeguarded. This may result
in changes to transportation, exchange locations, or any terms of supervision.


16 And in blended family situations, parents will need assurance that COVID-19 precautions are being maintained in relation to each person who spends any amount
of time in a household – including children of former relationships.


17 Each family will have its own unique issues and complications. There will be no easy answers.


18 But no matter how difficult the challenge, for the sake of the child we have to find ways to maintain important parental relationships – and above all, we have to find ways to do it safely.


19 Most of our social, government and employment institutions are struggling to cope with COVID-19. That includes our court system. Despite extremely limited
resources, we will always prioritize cases involving children. But parents and lawyers should be mindful of the practical limitations we are facing.


20 If a parent has a concern that COVID-19 creates an urgent issue in relation to a parenting arrangement, they may initiate an emergency motion – but they should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time. They should not even presume that raising COVID-19 considerations will necessarily result in an urgent hearing.


21 We will deal with COVID-19 parenting issues on a case-by-case basis.


a. The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are
inconsistent with COVID-19 protocols.
b. The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants;
compliance with public safety directives; etc.
c. Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner.
d. Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed. This is a very good time for both custodial and access parents to spend time with their child at home.


22 Everyone should be clear about expectations during this crisis. Parents want judges to protect their children. But with limited judicial resources and a rapidly changing landscape, we need parents to act responsibly and try to attempt some simple problem-solving before they initiate urgent court proceedings.


23 Judges won’t need convincing that COVID-19 is extremely serious, and that meaningful precautions are required to protect children and families. We know there’s a problem. What we’re looking f or is realistic solutions. We will be looking to see if parents have made good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness.


24 In family court we are used to dealing with parenting disputes. But right now it’s not “business as usual” for any of us. The court system will always be here to deal with truly urgent matters, especially involving children. But that means there will be little time or tolerance f or people who don’t take parenting responsibilities or COV ID-19 seriously.


25 I have carefully reviewed the materials filed on this case. Even in the absence of responding materials from the father, I have had the benefit of considering the e-mails he exchanged with the Applicant’s lawyer in relation to COVID -19 considerations.


26 While the mother’s concerns about COVID -19 are well-founded, I am not satisfied that she has established a failure, inability or refusal by the father to adhere to appropriate COVID-19 protocols in the future.


27 Every member of this community is struggling with similar, overwhelming COVID-19 issues multiple times each day.
a. The disruption of our lives is anxiety producing for everyone.
b. It is even more confusing for children who may have a difficult time understanding.
c. In scary times, children need all of the adults in their lives to behave in a cooperative, responsible and mature manner.
d. Vulnerable children need reassurance that everything is going to be ok. It’s up to the adults to provide that reassurance.
e. Right now, families need more cooperation. And less litigation.


28 I would urge both parents in this case to renew their efforts to address vitally important health and safety issues for their child in a more conciliatory and productive manner.
29 My denial of authorization to proceed with an urgent motion is without prejudice to the issue being returned to court if more serious and specific COVID-19 problems arise.


Any future motion would again have to be reviewed by the Triage Judge. However, I hope that both parents will understand the limitations of the family court process at this critical time.

30 None of us have ever experienced anything like this. We are all going to have to try a bit harder – for the sake of our children.


Justice A. Pazaratz
(Original copy will be placed in court file)

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COVID-19 - HELP TO SEPARATED/DIVORCED PARENTS

The COVID-19 pandemic requires urgent communication, co-operation and flexibility between separated and divorced co-parents.

Both co-parents and their child(ren) must isolate at home, like everyone else. This may require adjustments to existing parenting orders or arrangements. 

Co-parents must immediately:

[1] self-isolate and socially distance not only themselves, even when the child is not residing with that co-parent, but at every other time – no visitors, no exposure from others – strictly engage in and comply with all COVID-19 preventative measures (every family member);

[2] flexibly and co-operatively modify existing parenting arrangements to protect the safety and well-being of every child, and those with whom the child may come in contact, by isolating the child, requiring the child to stay at home and minimizing the child’s contact with any person other than the child’s immediate family members, with whom the child primarily resides;

[3] minimize, if not eliminate, access exchanges for the child – children should isolate together and in one home – if parenting arrangements currently require a child to be residing in both homes on a back-and-forth basis, arrangements should be made to extend residency periods in each home, rather than engaging in regular back-and-forth – at a minimum, week-by-week altering residency should be implemented, if not longer;

[4] minimize, if not eliminate, exposure of children to anyone not within the children’s immediate family, with whom the children are residing on a full-time basis – no playdates, birthday parties, shopping, or social visiting – provide regular assurances to the other co-parent that COVID-19 isolation and other required steps are being undertaken;

[5] facilitate and encourage regular and ongoing communication between a child and the other co-parent, unless to do so would be harmful to or threaten the safety or well-being of the child on a reasonable basis, even if this may not be required by existing Court orders, separation agreement or parenting plans;

[6] in addition to telephone, text and other traditional communication, download and implement virtual and online communication methods for every child to communicate with a non-residential parent, such as Facetime, Zoom, Hangout Meet, Skype, etc.

[7] if communication between co-parents is strained, utilize parenting communication platforms to achieve the COVID-19 containment objectives, such as Our Family Wizard, so a proper record is maintained and secured of both co-parents’ reasonable efforts, flexibility and co-operation;          

[8] at a minimum, strictly follow and adhere to any communication requirements in an existing Court order, separation agreement or parenting plan;

[9] discuss and co-ordinate a strategy for discussing the COVID-19 pandemic with the child, including to identify and ease any anxiety, confusion or fear the child may be experiencing;

[10] promptly notify the other co-parent of any changes to a child’s health, particularly related to COVID-19 symptoms, and respond to any enquiries by the other co-parent on a prompt and reasonable basis;

[11] if child support is an issue, co-parents should continue the status quo arrangements, unless they can agree, on a reasonable basis, to modify the financial arrangements to reflect changes or modifications to the parenting arrangements – for example, if the parenting is modified temporarily from an equal time sharing arrangement to a child residing only with one co-parent primarily, it may be appropriate to temporarily modify the child support arrangements, subject to the ability of the co-parents to do so, financially; and

[12] other than these emergency, urgent measures undertaken to attempt to contain the virus, co-parents should otherwise follow strictly their existing Court orders, separation agreements and parenting plans, except as agreed otherwise by them to address these extraordinary circumstances.                                                                                                      

For any child who may be vulnerable, have pre-existing conditions or compromised immuno-related conditions, co-parents must act immediately, prudently and jointly to protect the child – extraordinary arrangements may be required urgently, at least on a temporary basis. Every co-parent must act reasonably, responsibly and selflessly, to serve the best interests of the child, including emotionally.

If co-parents cannot mutually agree on modifying their parenting arrangements for the well-being and safety of their children, and the community at large, their Court order, separation agreement or parenting plan must govern and be followed. However, in these circumstances, co-parents must jointly, flexibly and co-operatively adjust their child’s parenting arrangements to not only protect the child, but themselves, other family members and the public generally.

Co-parents must immediately rise above their past or historical conflict, if any, to protect their child and the community at large – each has a duty to do so, legally and morally.  

Unless the safety or well-being of a child is, on a reasonable basis, placed at risk, co-parents must modify and change their parenting arrangements to achieve and comply with the containment measures undertaken by everyone, including social isolation and avoiding leaving home.

While this may be a challenge for some co-parents, it is critical that co-parents work together, flexibly, co-operatively and with a child’s best interest being paramount, to adjust parenting during this time of crisis. Every co-parent must do his or her part, like every other person in the community, to ensure that every child is socially isolated, exposed to minimal, if any, risk outside of the home, and is responsibly parented during this pandemic. 

The Superior Court in Central East jurisdiction, like many other jurisdictions, has very limited resources available currently to resolve parenting conflict. While there is limited opportunity to submit motions to the Court, they must be urgent. The Court will also be tremendously strained if facing an influx of motions by co-parents who cannot agree on taking reasonable steps to protect the health and safety of their children and for the benefit of everyone else. More information about the suspension of the Family Court is here: https://www.ontariocourts.ca/scj/covid-19-suspension-fam/.

The local police agencies are already strained and operating at reduced capacity. Involving the police in a co-parenting dispute is a very last resort and must only be undertaken if absolutely necessary. The police should be contacted if the safety or well-being of any child is at risk, but co-parents must act responsibly, reasonably and in accordance with the directions, recommendations and advice by government and healthcare officials, which outline monitoring steps, preventative measures and available resources if COVID-19 exposure is a concern or potentially detected.

If you have a conflict, you could also try to contact and seek the assistance of a family law lawyer, which may also be challenging currently and may not achieve an expedient resolution in times when urgency is a necessity. 

 

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ONTARIO COURT OF APPEAL BACKS ME UP – HOW I REPRESENT INCAPABLE PEOPLE IN LAWSUITS (FAMILY CONFLICT)

Periodically I am appointed by the Superior Court (or the Ontario Public Guardian and Trustee) to act for the interests of an incapable person, who needs representation and support.

Often this arises in disputes among family members over the incapable person’s power of attorney for either property or personal care, or both.

This is a very special role. I am statutorily charged to only represent the views and preferences of the incapable person, which regularly do not align with family members, in whole or in part.

This role is called “section 3 counsel”.

Recently Ontario’s Court of Appeal ruled on a case in which I acted as section 3 counsel.

The trial involved a dispute about the validity of my incapable client’s powers of attorneys. The family was entirely divided. One side challenged my position and argued the Court has no authority or ability to take into consideration my submissions and position, often done orally at the hearing, regarding the incapable person’s wishes and preferences.
Fortunately, the Court of Appeal disagreed, holding [at paragraph 8]:

“In the same way, it was reasonable for the application judge to refer to the statements of Jason Ward, section 3 counsel appointed by the Public Guardian and Trustee to represent Mrs. Lewis’ interests on the guardianship application, concerning Mrs. Lewis’ expressed wishes.”

This case offers very significant new judicial guidance to the role of section 3 counsel for advocating on behalf of incapable people who are deemed to have capacity to instruct a lawyer.

The Case:

Lewis v. Lewis, 2019 ONCA 690

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WHAT IS COLLABORATIVE FAMILY LAW?

Collaborative family law has grown in popularity over the last 25 years and has been embraced by family law practitioners to varying degrees. The collaborative family law movement began in the Western American states and was later adopted in British Columbia as one of the first provinces in Canada to embrace a shift in family law towards alternative forms of dispute resolution. Since that time, many lawyers across the country have embraced a transition to the collaborative process, perhaps in light of the fact that most family law cases settle before they reach the adjudication phase of litigation.

Collaborative family law took hold in Lindsay in 2012 when a group of local family law lawyers completed the necessary training and established the Kawartha Collaborative Practice group. Many family law lawyers are shifting towards seeking a method of resolving family matters in a more supportive way. This phenomenon, together with the growing barriers to accessing the judicial system, has led to a drastic increase in families choosing to embrace the collaborative process. The current legal system has been criticized for being ineffective and inflexible for adjudicating the many issues associated with family law matters. However, the recent Bill C-78, which introduces amendments to the Divorce Act, shows direct movement towards recognizing the collaborative process as a viable alternative dispute resolution process.

Indeed, settlement may be the most attractive option for litigants, as adjudication in the family court removes a great deal of control with respect to a family’s financial and structural future. Parties engaged in family law issues are typically dealing with a host of other emotional and financial uncertainties, which the traditional legal model is not able to address holistically. Additionally, many individuals involved in the family law system become frustrated with the expense, investment of time, and the lack of control they experience while litigating such personal matters.

In contrast, the collaborative process is focused on individual and family goals and interests and offers a method of achieving flexible yet legally binding solutions without pursuing costly and unpredictable litigation. Process goals include respectful communications, forthright exchange of documentation, confidentiality, and involvement of various collaborative professionals who strive for problem solving. The collaborative process is truly all encompassing and often includes various professionals trained in the collaborative approach, such as financial advisors, mental health professionals, social workers, and negotiation coaches/facilitators.

In the collaborative process, lawyers are specially trained to remain focused on settlement. The parties sign a Participation Agreement which governs their behavior throughout the process. The parties and their lawyers arrange “team” meetings which are structured to allow individuals to actively participate in creating solutions that are realistic for their family and which emphasize their main goals and interests. The main caveat of this approach is that it is essential that the parties are committed to resolution and are able to consider or appreciate the issues (to some extent) from each other's perspectives.

A primary critique of the collaborative process is the inevitability of an impasse between the parties resulting in either coercive bargaining or a failure of the process. However, there are several options available in the collaborative process to overcome such an impasse. The addition of neutral professionals to the collaborative process may decrease the chances of the parties reaching an impasse. Parties who are able to hear one concise position regarding their family’s financial matters directly from trained professionals may be less likely to fixate on one single financial position, and more likely to agree on a financial solution. Likewise, parties who have received the benefit of a social worker’s skillset may be less likely to escalate emotionally and dig in their heels when attempting to reach a settlement. In the case of a severe impasse that cannot be overcome by the collaborative team, one or two deadlocked issues may be referred to an outside mediator or arbitrator for recommendations or a final decision.

The rebuilding of a basic foundation of trust between parties is a central component to the collaborative process, even if this trust is limited in scope. Parties must learn how to work together, even if only with respect to limited situations, such as those relating to their children’s best interests. Once this trust building process begins – even if only in certain areas – impasses on other issues may be less likely to occur. Given the unique requirements of the collaborative process and the challenges associated with unique family dynamics, it may not be right for every family. However, unlike litigation, the collaborative process is flexible and ensures that both parties are able to be involved in the process of designing creative solutions that meet the unique needs and goals of their family. A meeting with a trained collaborative family lawyer will assist in determining whether the collaborative process is right for you and your family.

Amelia Rodin, WARDS LAWYERS PC

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DOES YOUR CHILD'S VOICE MATTER IN YOUR FAMILY LAW DISPUTE?

Decisions regarding custody and access have an immense impact on the best interests of the child. In order to ensure that the best interests of the child are met, there are three commonly employed methods of incorporating a child’s views and preferences into the judicial process. Representation of the child by a lawyer is perhaps the most prevalent method, followed by expert reports, and meetings between a judge and child. Judicial interviewing has historically been a controversial method for determining a child’s views, and the effectiveness of this approach has been criticized. There are two common views - one proposing that children must be protected from familial conflict and choosing sides, the other suggesting that the views of children should be encouraged as often as possible.

In Ontario, the Childrens Law Reform Act (CLRA) governs judicial interviewing of children and states that the court shall take the views and preferences of the child into consideration wherever possible.  Section 64(2) of the CLRA further provides that “The Court may interview the child to determine the views and preferences of the child”. Unfortunately, this provides very little guidance in regards to how and when judicial interviewing should be conducted. Across Canada, most jurisdictions have left the option of a judicial meeting to the judge’s discretion.

While the current legislation permits any judge the opportunity to interview a child, judges in Ontario rarely meet with children. The most commonly cited reason for this is that meeting and interviewing children requires a unique skill set, which includes both specific training as well as an understanding of the way in which children speak.  Additionally, the court has consistently upheld that judges must not collect evidence, and accordingly, judges must not base their decision solely based on the views expressed by a child. Judges are ultimately bound by legislation, and must be careful to consider what is in the best interests of the child, not simply what the child expresses. These competing interests were discussed in the 1965 case Hodge v Hodge (1965 7 FLR 94):

One of the reasons given in that case for not seeing the child was that the court has to consider the welfare rather than the mere desires of the child. That is true, but with the greatest respect to what their Lordships said, one of the factors that has to be considered, although in many cases it may not be a dominant or even an important factor, is what the child wants. That is something that has to be considered in deciding what is best for the child. Secondly, the Court of Appeal referred to the fact that a child which has been in the custody of one present may very naturally express wishes that strongly favour that parent. That may be so, but that, I should have thought, is something that any judge might be expected to discount and take into consideration, and of course if the contrary were the case, that is, if the child expressed a view that was not expected, that might be something that the court might regard as significant. I feel that perhaps I will not gain a great deal from seeing the child in this case, but nevertheless I think it is a proper exercise of my discretion to see her.

Several judges have utilized judicial interviews in more recent years (refer to Coda v Coda 1997 CarswellOnt 3953; PLM v LJ, 2008 CanLII 35923; McAlister v Jenkins, 2008 CarswellOnt 4266). However, Ontario judges frequently defer to utilizing the appointment of the Office of the Children’s Lawyer or the use of an expert report to bring a child’s views into the court process, perhaps due to the view that this creates a more balanced picture of what is in the child’s best interests.

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COLLABORATIVE FAMILY LAW - THE BETTER WAY

Collaborative family law is a way for you to resolve your relationship breakdown issues more respectfully -- without going to Family Court. It is a better alternative to an acrimonious, traditional battle in Court, with high stakes and high legal expenses. It is, basically, a much better way, which many lawyers and other family law professionals now support and encourage.

This alternative offers you and your former spouse or partner the support, protection, and guidance of your own lawyers, but also the benefit of child and financial specialists, family professionals, and other experts, if they would be helpful in your circumstances, working together on your team.

For the collaborative alternative, you commit to:

  1. Negotiate a mutually acceptable settlement without having the Family Court decide issues for you.

  2. Maintain open communication and information sharing.

  3. Create shared solutions acknowledging your priorities and objectives, including to live independently in future.

  4. Manage your legal expenses in an informed, constructive way.

  5. Achieve an outcome that is decided upon by you, with the support of your own lawyer, not by a third party, like a Judge.

You can find more information about collaborative family law here:

Ontario Collaborative Law Federation

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FAMILY COURT - DON'T ASSUME YOU WILL GET YOUR LEGAL EXPENSES BACK - THE RULES:

No party in a Family Court case should presume he or she will be awarded his or her costs for the case. Generally, costs are only addressed by the Family Court at the end of the case, when the issues are decided on a final basis by either the Court or by settlement between the parties themselves. The exception – costs incurred for motions or other steps during the case may attract cost orders by the Court, depending on the circumstances. 

Several recent Family Court cases in Ontario offer more guidance and direction about entitlement to costs in Family Court cases and the factors usually applied by the Court to decide if costs will be granted to a party and, if so, the manner in which the amount of those costs will be determined. 

A.        JUDICIAL DISCRETION AND THE FAMILY LAW RULES:

Firstly, whether costs will be awarded to a party in a Family Court proceeding is discretionary. There is no absolute rule of law that the Family Court must award costs in a case. Section 131 of Ontario’s Courts of Justice Act, R.S.O. 1990, c. C. 43 statutorily confers discretion to the Family Court in determining any award of costs in a Family Court proceeding. Sub-section 131(1) reads:

Costs

131. (1) Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.  R.S.O. 1990, c. C.43, s. 131 (1).

Rule 24 of Ontario’s Family Law Rules, O. Reg 114/99 (the “Rules”) promulgate guiding and general principles for the Court’s exercise of discretion when determining costs in a Family Court proceeding.

Based on the Rules, the case law in Ontario identifies important and fundamental objectives for the Family Court to consider and balance when determining if costs should be awarded in a Family Court proceeding:

(a)       to partially indemnify successful litigants for the cost of litigation;

(b)       to encourage settlement; and

(c)       to discourage and sanction inappropriate behavior by Family Court litigants.

In exercising this discretion whether it is appropriate to award or deny costs to a party in a case, the Family Court should generally consider all of the relevant factors and circumstances in that case, to the extent they could be ascertained.

Reference:

Serra v. Serra, 2009 ONCA 395 (CanLII); 66 RFL (6th); [2009] Carswell 2475; [2009 O.J. No. 1905 (QL) (“Serra”)

Wallegham v. Wallegham, 2015 ONSC 8066 (CanLII) (SCJ) (“Wallegham”)

Scipione v. Scipione, 2015 ONSC 5982 (CanLII) (SCJ) (“Scipione”)

B.        ENTITLEMENT TO COSTS - GENERAL PRINCIPLES:

(a)       Presumption of Costs to the Successful Party and Unreasonable Behaviour:

Pursuant to sub-Rule 24(1) of the Rules, there is a presumption that a successful party is entitled to costs of a motion, enforcement, case or appeal. However, despite sub-Rule 24(1), sub-Rule 24(4) provides that a successful party who has behaved unreasonably during a case may be deprived of all, or part of, that party’s own costs, or be ordered to pay all, or part of, the unsuccessful party’s costs.

Pursuant to sub-Rule 24(5) of the Rules, in deciding whether a party has behaved unreasonably, the Court “shall examine”:

(a)      the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(b)        the reasonableness of any offer the party made; and

(c)        any offer the party withdrew or failed to accept.  O. Reg. 114/99, r. 24 (5).

(b)       Divided Success and Mixed Results:  

If success in a step of, or the final outcome of, a case is divided, the Court may apportion costs as appropriate, pursuant to sub-Rule 25(6) of the Rules. If the step or the case is divided, or results in mixed success, sub-Rule 24(6) permits the Court to exercise discretion to apportion costs or order that no costs are payable. 

The case law in Ontario establishes that a Court may also assess and ascertain success on a global basis and award costs to whichever party was more successful. Similarly, where the parties have settled their step or case by negotiated agreement, the Court may award costs to the party who was more successful overall or on a global basis.

(c)       Non-Attendance; Unprepared for Case or Hearing:

If a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step, the Court “shall award costs against the party” unless the Court orders otherwise in the interests of justice, pursuant to sub-Rule 24(7). Therefore, where a party has failed to attend at a step in the case or is inadequately prepared to address the issues at hand, sub-Rule 24(7) creates a presumption that the unprepared or absent party will pay the other party’s costs. However, the Court may exercise discretion if it would be in interests of justice to not award costs in the circumstances.

Generally, when deciding whether to award costs and, if so, the appropriate amount of costs, the Court should consider: (i) all of the factors and circumstances of the particular case; and (ii) the reasonableness of the parties’ conduct and their positions during the case, respectively, to the extent they could be ascertained.

If a successful party is determined to have acted unreasonably, sub-Rule 24(4) gives discretion to the Court to deprive the successful party of any costs, to apportion costs between the parties in a manner determined appropriate by the Court or require that the successful party pay the other party’s costs. 

Generally, unreasonable behavior that has previously been held to reach this threshold includes, but is not limited to: a “pattern of conduct” reflecting a party’s lack of respect for Court orders and/or the parent-child relationship, even if that objectionable conduct does not constitute bad faith.

(d)       Offers to Settle:

In determining entitlement to costs and the amount of costs to award, the Family Court will also consider whether either party made an offer to settle to the other about any of the issues in dispute.

If a party fails to accept a reasonable offer to settle, it potentially could result in that party paying costs to the offering party, particularly if the offer made meets the criteria required for offers to settle set out by sub-Rule 18(14) of the Rules. 

If sub-Rule 18(14) does not apply, the Family Court may still consider any written offer given by a party, the date on which any written offer was made, the terms of any such offer and the failure of either party to make or accept an offer to settle when determining costs.

(e)       Bad Faith:

If a party has acted in bad faith, the Court “shall decide costs on a full recovery basis and shall order the party to pay them immediately”, provided that the costs claimed by the other party are fair and reasonable, pursuant to sub-Rule 24(8) of the Rules.

C.        DETERMINING THE AMOUNT (QUANTUM) OF COSTS – GENERAL PRINCIPLES AND FACTORS:

Ontario case law establishes that, if the Family Court determines a party is entitled to costs, the following general principles and factors will generally be considered by the Court in determining the amount (or quantum) of costs to order: 

(a)       the amount awarded is not determined by actual costs incurred by the successful party;

(b)       the amount of costs must be proportional in relation to the issues and amounts dealt with and the final outcome of those issues;

(c)       costs should be fair and reasonable; and

(d)       parties’ expectations regarding the amount of costs that will be awarded is a relevant consideration in determining what is fair and reasonable or, what is generally referred to as, “proportionality” of costs.

Generally, the Family Court will also consider the following case-by-case, specific factors, pursuant to sub-Rule 24(11) of the Rules:

(a)       the importance, complexity or difficulty of the issues addressed;

(b)       the reasonableness or unreasonableness of each party;

(c)       the rates of the lawyer(s) involved for the party(ies);

(d)       the amount of time properly spent working on the case;

(e)       the cost of any expenses properly paid or payable; and

(f)        anything else, or other factor, that is relevant or appropriate to consider.

When determining the amount of costs payable, if any, usually the Family Court also considers the ability of a party to pay costs and the impact of ordering costs will have on the party, considering that party’s financial circumstances to the extent they are known. However, this factor will likely be less significant, or be given less weight by the Family Court in determining the amount of costs to be ordered than, for example: (a) the other, successful party’s overall success in the matter; and (b) the reasonableness of the behaviour of the party who will pay costs.

Historically, the Family Court has also taken a somewhat modified approach on costs in cases focusing on parenting matters (custody, access, etc.). Generally, the Family Court has been more cautious in ordering costs in these types of cases or with respect to these specific issues, primarily to try to ensure that parties with valid and meritorious claims or concerns will not be deterred from raising those matters in the Court, when appropriate or necessary to do so. 

D.        CASE EXAMPLE – MOTION DURING THE CASE:

            Wallegham v. Wallegham, 2015 ONSC 8066 (CanLII) (SCJ)   (“Wallegham”)

The Wallegham case is an example of the Court applying the principles and factors for costs set out above to an interim, or temporary, motion hearing in a Family Court case dealing with the temporary parenting of a child. 

(a)       Nature of the Motion – Brief Background:

The parties married in 2008 and separated May 1, 2015.  They had one child, born January 9, 2015, who had remained in the mother’s primary care since the date of separation. The mother’s and father’s dispute was acrimonious. 

Pursuant to a temporary Court order, dated June 26, 2015, the child was to remain in the mother’s primary care. The father was granted daytime access, but supervised by the mother only, three days per week in the parties’ former matrimonial home. Due to fairly significant conflict and acrimony between the parties, they later agreed that the father’s access would change and take place at the mother’s sister’s home under her supervision.

Subsequently the father brought a motion, heard on October 23, 2015, to change and expand the terms of his access, including eliminating any requirement for it to be supervised by anyone. Specifically, the father requested unsupervised access every weekend from Friday evening to Sunday evening and on every Wednesday for two-hour visits with the child. He also requested the option of taking the child to visit his extended family in London, Ontario, during his time with the child, as he requested. 

However, the mother opposed the father’s motion. Her position - the father’s access should continue to be supervised at a local YWCA access centre.

(b)       The Decision of the Court on Parenting:  

After the hearing, the Court ordered a more expanded, progressive access schedule in favour of the father:  

(i)        initially, the father would have the child in his primary care during the daytime three days per week (based on the earlier Court order) provided, however, that this access would take place in the father’s own home, supervised by his mother (the paternal grandmother);  

(ii)       beginning November 23, 2015, the father’s access would be increased to two evenings per week and one overnight per weekend from early evening on Friday to Saturday afternoon, without any supervision requirement; and

(iii)     the father was granted the opportunity to take the child to visit extended family in London, Ontario, during his primary care time with the child.

(c)       The Decision of the Court on Costs:

After the decision by the Court on the parenting dispute, the father claimed he had been successful on his motion and, therefore, he requested costs against the mother. The mother acknowledged: (i) there had been divided, or mixed, success to both parties on the motion; and (ii) the father had been more successful than she overall. However, the mother asserted that the father’s costs should be limited to only $750, minus the costs she had incurred to prepare her cost submissions to the Court, because she had offered, prior to the Court deciding the issue of costs, to pay the father $1,500, inclusive, to resolve the costs issues, but he did not accept that offer by her.

The Court ordered no costs were payable by either party.

By applying the principles and factors set out above, the Court decided neither party would have to pay costs to the other for this motion during the case because, among other reasons:

(a)       from an overall or global perspective, success between the parties was divided, or mixed, even though the father was somewhat more successful than the mother;

(b)       both parties initially formed and maintained unreasonable positions with respect to parenting time;

(c)       on the one hand, the father had acted unreasonably by requesting fairly dramatic and drastic changes in the parenting arrangements, which were inappropriate given his inexperience as a parent and the fairly tender age of the child and, on the other hand, the mother also acted unreasonably by rejecting the father’s mother (the paternal grandmother) as a person capable of supervising his access with the child;

(d)       the Court concluded that both parties, if acting reasonably, ought to have been capable of agreeing on and resolving on their own a compromise, similar to the ‘middle ground’ approach taken by the Court, in the best interests of the child, being the paramount consideration;

(e)       the father failed to make an offer to settle the matter out of Court;

(f)        the mother had limited financial means and a compromised ability to pay costs to the father; and

(g)       the mother had made an offer to pay costs in an amount equal to or higher than what the Court would have awarded, which the father failed to accept before the Court made its decision on costs.

E.         CASE EXAMPLE – FAMILY COURT TRIAL:

Scipione v. Scipione, 2015 ONSC 5982 (CanLII) (SCJ) (“Scipione”)

The Scipione case is another example of the Court applying the principles and factors for costs set out above, but with respect to a trial in a Family Court case involving many issues between the parties. However, the Scipione case also offers guidance for the treatment of costs on motions during a case, too, which are consistent with the Wallegham case.    

(a)       Nature of the Case – Brief Background:

The parties had a relationship for more than twenty years. After it broke down, they became embroiled in an acrimonious, protracted dispute, mostly about child and spousal support.  Eventually, when attempted negotiations failed, the husband brought a Family Court case. The case proceeded to a lengthy trial of issues, following which the Court rendered decisions to resolve all of the issues in dispute between the parties. When costs were determined, the Court ordered the husband, who was mostly unsuccessful at the trial, to pay costs to the mother in the amount of $52,000.

Less than one year after the trial decision, the husband brought a new motion seeking to revisit nearly all of the issues regarding support that were determined at the trial. Initially the wife responded by seeking to dismiss the husband’s new motion, but ultimately she made her own counterclaim against the husband and emphasized in her documentation filed with the Court that she preferred for the husband’s motion to be dismissed and that her counterclaims were made by her only in response to the husband’s new motion. In other words, she made it clear that she preferred for the entire case to be dismissed promptly, with the earlier trial decision continuing to apply.   

By negotiation in the midst of the hearing, the parties resolved all of the issues raised by the husband’s motion and the wife’s counterclaims, except for costs, by entering a consent on the third day of the hearing of the motion. However, based on their agreement, it was unclear to the Court who succeeded on the motion for the purpose of determining costs of the motion, as requested by both parties.

The wife claimed full indemnity for her costs ($83,034.46), plus HST, by asserting that the husband had been “entirely unsuccessful”. She also claimed that his motion caused her to incur significant legal fees to, effectively, revisit the very same issues that had been previously decided on by the Court. On the other hand, the husband argued that the wife should have to pay to him $20,000 in costs – he believed that success for the motion he brought was divided, or mixed. He also argued that costs should not be triggered, because the matter was resolved by settlement between the parties, rather than by a decision of the Court. He also claimed his total fees arising from his motion were approximately $55,375, before tax.

(b)       The Decision of the Court on Costs:

The Family Court did not make a decision on the specific family law issues in dispute in the case, because the parties reached a written settlement of those themselves. However, the Family Court did consider the costs in the case, which both parties requested.  

The Court ordered the husband to pay costs of $70,000.00 to the wife, inclusive of tax and disbursements, holding that he had been largely unsuccessful on his motion. The Court did not order full recovery of her legal expenses, because the “bill of costs” submitted by her to the Court did not identify or contain adequate information to justify an order for the full recovery of all of her legal expenses.  

The Court considered and applied the general principles and factors for determining costs in a Family Court case, as set out above and, in particular, addressed these specific issues for determining costs:

(i)        Offers to settle; Impact - the cost consequences triggered by offers to settle;

(ii)       Determining success - how to determine if a party is successful and how that success impacts costs of the case; 

(iii)     Divided (mixed) success - how to deal with costs when success is divided, or mixed, between the parties for the issues at hand; and

(iv)      Allocating costs for settlements - how costs are allocated if the parties resolve and settle their dispute before the case is actually decided finally by the Court;

(v)       Unreasonable Behaviour – the consequences and implications for costs; and

(vi)      Setting the amount - how to determine the amount of costs and, to do so, the detailed documentation that is generally required by a party to justify a certain amount of costs. 

(i)        Offers to Settle – Implication on Costs:

Firstly, the Family Court considered when offers to settle trigger cost consequences in Family Court proceedings.  

Pursuant to sub-Rule 18(14) of the Rules, a party in the case is entitled to costs, unless ordered otherwise by the Court, if that party: (a) had made a written offer to settle not less than seven days before the trial of issues; and (b) obtained a result at the trial that met, or was better than, the terms of that party’s offer to settle.

If these conditions are satisfied, the party is entitled to partial recovery of his or her legal expenses to the date on which the offer to settle was served and full recovery of his or her legal expenses as of that date, subject to the other factors generally to be considered by the Court before awarding those costs.

(ii)       Determining Success and Imp

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LIVING COMMON LAW? A FEW TIPS YOU SHOULD CONSIDER. SURPRISE!

If you are living common law, or hoping to do so, here are a few tips you should consider in terms of your relationship and what happens if it breaks down:

  1. Generally, you will be considered to be common law if you and your partner reside together for three years or more, or if you both have a child together.
  2. If you have a child together, but your relationship breaks down afterwards, the same rules apply to you for child support as they do for married spouses, including paying Table child support and contributing to the child’s special and extraordinary expenses (including post-secondary education), if you are not the primary care parent (subject to a few exceptions).
  3. The same thing applies for spousal support between common law spouses – you are treated legally as if you were had been married, more or less, for spousal support purposes. Generally, the legal obligation to support your common law partner will arise if you have lived together continuously for three years or more, or are in a relationship of “some permanence” and have a child together.
  4. Only married couples share the value of their property when their relationship breaks down. This is done by a fairly complicated formula, known as equalizing each spouse’s “net family property”. Effectively, the spouses split-the-difference between the net worth each accumulated during the marriage, subject to certain exclusions. However, for two people who live together at common law, but who do not actually marry, the law is different. When two people live together in a common law relationship, their property routinely is co-mingled and inter-mixed. If they separate, disagreements often arise about what each person will take from the relationship.  For example, if one partner has contributed time or work that helps the other buy or maintain property, such as a home, this may give rise to a claim for the non-owner spouse. Generally, common law spouses have to make more complicated legal claims against their separated partner, if they feel there has been unfairness arise from the relationship and its breakdown, such as family joint venture, constructive trust and unjust enrichment claims. In any event, property division and settlement for common law spouses is very different than for married spouses and, generally, more complicated to address legally quite often.
  5. Unlike married spouses, common law spouses do not have an inalienable, statutory and equal right to stay in the family home following a relationship breakdown, if that spouse’s name is not legally reflected on the title of the property. What’s more, the titled spouse (who actually is registered as the owner) can sell or re-mortgage the property without the other’s written permission, subject to the Court intervening if requested by the non-titled party. This is another example of how common law spouses are treated differently in Ontario law than married spouses.
  6. Because of the greater uncertainty for common law spouses and the different law that will apply on relationship breakdown, a domestic contract, such as a cohabitation agreement, should be considered to at least minimize the uncertainty that can arise on separation and, at the same time, offer protection to a common law spouse during the relationship, particularly if that partner is contributing money, time or effort to the other’s asset(s), or otherwise providing family support while the other is advancing his or her professional goals. In short, if you are common law, you should have a domestic contract in place (ideally early in the relationship) to minimize your worry, uncertainty about the future and to ensure that you are properly compensated for your contribution to the relationship.

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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MARRIAGE BREAKDOWN - WHAT WILL HAPPEN TO OUR HOME?

On marriage breakdown (not relationship breakdown), a key area of confusion and uncertainty for many separated spouses is what happens to the matrimonial home. Only married spouses can own or occupy a matrimonial home – common law spouses cannot do so (Family Law Act).

 

“Matrimonial home” is defined by section 18 of Ontario’s Family Law Act:

 

“Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.”

 

Practically, it is any property at the separation date that is ordinarily occupied by the spouses as their family residence.

 

Spouses can have more than one matrimonial home – it is a fact-specific issue. For example, the home in town and the cottage could both potentially qualify as matrimonial homes, if the facts support that finding.

 

Depending on the facts, matrimonial homes can be treated differently in terms of what must happen to them on marriage breakdown.

 

Often they form part of the formulaic approach to property distribution and resolution under the Family Law Act, a challenging formula to understand and master for most (including many lawyers). 

 

For many reasons, including emotional and financial, a spouse may not wish to leave, or refuse to list and sell, or wish to delay any disposition of a matrimonial home, often understandably.

 

Spouses can try to retain the matrimonial home, but if it jointly owned legally, Ontario law gives either spouse the right to seek a listing and sale of it. Often Judges are reluctant to order a listing and sale prior to a trial, but they will do so if the circumstances are appropriate.

 

If the home is jointly owned, both spouses have a statutory right to possess it both during marriage as well as after separation and neither can be forced to sell their half to the other. Spouses do not have a right of first refusal to purchase the matrimonial home from the other where it is jointly owned. In fact, in Ontario, the Partition Act gives the Court power to force the sale of a jointly owned matrimonial home, if the parties cannot come to a buy-out agreement, for example. Spouses are entitled to list the matrimonial home on the market in an effort to obtain the best market value, but a spouse will not be required generally to accept less than fair market value from the other spouse.

 

The Partition Act is only available in situations of joint ownership. Where the title to the matrimonial home is in the name of only one of the spouses, then the Partition Act does not apply. This does not mean that the other spouse has no claim against the matrimonial home. The non-titled spouse still has a claim to the equity from the property through the equalization process provided for under the Family Law Act. A spouse may also have equitable trust claims against the home, too. However, legal title matters. The non-titled spouse cannot force the titled spouse to sell the matrimonial home, or limit the ability of the titled spouse to keep it, sell it, refinance it or even make a gift of it, unless a Court order is made otherwise.

 

Buy-out decisions must be carefully planned and considered. Future projections on carrying expenses must be reviewed. A decision is often made about whether a spouse can reasonably afford the home, rather than have it sold, or sell the interest to the other spouse. Generally, the Court will focus mostly only on the real property value of the matrimonial home and the right of the other spouse to maximize their return from it. Uncommonly does the Court put emphasis on or stock in the importance and emotional value of the home to either spouse (or children), when it comes to addressing the property issues only.

 

If a spouse wishes to buy out the interest of the other in the matrimonial home, tactically, letting that be known can create unequal bargaining positions in the negotiations or litigation. The other spouse can, in effect, try to lever that desire to gain a tactical advantage – sometimes this happens.

 

Usually there are several options to consider on marriage breakdown, with multiple factors to review, before any temporary or permanent decisions are made about the matrimonial home. An early decision can impact the final outcome, of course.

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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DENYING ACCESS TO A GRANDPARENT - AUTONOMY, YES, BUT NOT ARBITRARY

In Ontario, grandparents face a challenge when they are denied access to their grandchildren.

A new Ontario case – Nicholas v. Herdman (2015) is a case in point.

This case mostly affirms the traditional approach of the law to grandparents seeking time with their grandchildren.

Here, their granddaughter was two years old. The parents would not allow any access by the grandmother and only limited, supervised access by the grandfather. The grandparents alleged they had played a close, important role in their grandchild’s young life, including caring for her because the parents could not afford childcare. They alleged they had a loving relationship with their granddaughter.

The evidence indicated family stress – the grandparents did not care for their daughter’s new partner. Family conflict abounded, to the point that their daughter severed her relationship with these grandparents (and, therefore, their relationship with their granddaughter).

The affidavit evidence in the case was contradictory. Ultimately the grandparents claimed that their daughter had acted arbitrarily and capriciously, which was not in their granddaughter’s best interests.

The parents responded by claiming they were protecting the granddaughter from the grandmother’s manipulative and controlling behavior, which allegedly had transpired for years before. They also claimed both grandparents’ behaviour was increasingly erratic, unstable and emotionally damaging to them and the granddaughter.

In short, the allegations exchanged by both sides were hurtful, inflammatory and very contradictory in nature – often a challenging exercise to sort through in Family Court.

Grandparent Access Law Generally in Ontario

The starting point: section 21 of Ontario’s Children’s Law Reform Act, which provides for ‘a parent of a child or any other person’ to ‘apply to the court for an order respecting custody of or access to the child.’ Custody of or access to a child must be determined on the basis of the best interests of the child, pursuant to sub-section 24(1) of that legislation.

The oft-referred to case in Ontario for this area is Chapman v. Chapman, a decision of the Ontario Court of Appeal. Interestingly, this case started in this area initially. In this case, the Court held that that parental autonomy for making decisions for or about children should be respected in the absence of any evidence that the parents’ conduct an inability to act in the children’s best interests. A Court should generally defer to the parent’s decisions about grandparent access unless all three of the following tests are met in the circumstances:

a) Is there already a positive grandparent-grandchild relationship?

b) Has the parent’s decision negatively impacted or imperiled the positive grandparent-grandchild relationship?

c) Has the parent acted arbitrarily?

The Outcome of This Case

Based on third party evidence from extended family members, the Court found that a positive relationship between the granddaughter and her grandparents existed – they were actively involved in her care.

The Court also found that the parents’ conduct imperiled the relationship between the granddaughter and her grandparents. For example, the child had seen her grandmother five days per week for several months of her young life. What’s more, the stipulation that supervision is necessary for the grandfather to see his granddaughter when none was previously required had a significant impact on the grandfather-granddaughter relationship and the frequency of contact.

The Court also held that it was clear since the grandchild had been born that her mother desired for her parents to be a part of her child’s life. However, over a period of a few months, the parents began feeling that the grandparents were being controlling and manipulative of their parenting, their care of the granddaughter, her activities and her relationship with other extended family members. Therefore, the Court concluded based on all of the evidence that the parent’s decision to terminate access was not arbitrary and not a capricious or isolated action. It was, finds the Court, a result of long-term conflict that finally materialized to the point of no return.

The Court also found that the parents were loving, capable and made decisions affecting their daughter in their daughter’s best interest generally. The Court accepted they had legitimate and genuine issues and concerns, for some time, about the grandparents efforts to diminish them and marginalize their role in their daughter’s life and upbringing.

Following the Chapman case, this Court gave deference to these parents’ autonomy to decide if these grandparents should pay a role in their granddaughter’s life, as there was no evidence satisfying the Court that the grandparents’ behaviour demonstrated an inability to act in accordance with the child’s best interests. Without that evidence presented by the grandparents, they lost and were granted no parental rights, including no access. 

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

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SEPARATED PARENTS CLAIMING ELIGIBLE DEPENDENT AND CHILD PERSONAL TAX CREDITS - MAKE SURE YOUR AGREEMENT IS PROPERLY WORDED

The case: Letoria v. R (2015) - a decision of the federal Tax Court of Canada

By their Family Court Order, made on consent, Mom and Dad agreed to:

1. shared parenting of their child;

2. calculate what each owed to the other for Table child support (based on their respective incomes from all sources); and

3. declare that the Dad would pay the set-off amount to Mom (because his child support payment was higher at the time).

Note: The Order declared what Table child support amount each owed to the other, but only required the Dad to pay the set-off amount to Mom.

Subsequently, the Dad filed his personal income tax return for that year claiming a personal tax credit for eligible dependents and the child amount, per section 118 of the federal Income Tax Act.

The Tax Court denied his claim for these personal benefits.

Effectively, because the Family Court Order did not expressly indicate that the Mom had to pay child support to Dad, the language in the Income Tax Act denied the Dad the ability to claim these personal tax benefits. A complicated analysis, no doubt, but the Court ultimately determined that the Income Tax Act would have to be changed to allow a shared-parenting parent to claim these benefits, if the approach is to be pay the set-off amount between each party's child support obligation to the other. 

What does this mean to you? Make sure you obtain qualified legal and accounting advice for your family law matters. Here, if the Dad had done so, he likely could have structured the Court Order to allow him to successfully claim these personal tax credits in future. By not doing so, he not only will not received those credits, but he presumably incurred substantial legal expense in being told he could not do so.

There is often interplay between family law and tax issues that have to be considered and, if they are not, the financial implications can be harsh.

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

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IF A CHILD IS ABDUCTED OR NOT RETURNED BY THE OTHER PARENT FROM A U.S. (FOREIGN) VACATION/TRIP - THE HAGUE CONVENTION

If a child from Canada is abducted to a foreign country, or is not returned from vacation in or a trip to a foreign country, the left-behind parent in Canada faces a challenging process to have the child returned (but there is a legal process available).

Generally, the Hague Convention on Civil Aspects of International Child Abduction (“Hague Convention”) applies (as of this time).

Canada is a signatory of the Hague Convention, along with the U.S. and about 86 other countries.

The Hague Convention is an international treaty. Co-operating countries have agreed to work together to return children who are wrongfully removed from a signatory country.

The goals of the Hague Convention are: (1) to secure the immediate return of a child wrongfully removed or wrongfully retained in any Contracting State; and (2) to ensure that rights of custody and access under the law of a signatory country are effectively respected in other signatory countries.   

If, for example, a child is removed from Canada unlawfully and taken to the U.S., the parent in Canada would contact the federal government and police (the “Central Authority”), following which an application would be sent to the U.S. State Department for the return of the child. These government officials are supposed to co-operate to locate the child, have the case evaluated and have a lawyer appointed in the U.S. to petition the Court to order the child to be returned.

Generally, the test for a return order under the Hague Convention is: (1) prior to removal or wrongful retention, the child was habitually resident in a foreign country; (2) the removal or retention was in breach of custody rights under the foreign country’s law; and (3) the petitioner actually was exercising custody rights at the time of the removal or wrongful retention.

If this prima facie case is met, the child will generally be ordered returned to Canada, unless the removing parent can establish one of these positions/defences: (1) the child has become well-settled in the new surroundings; (2) the petitioner consented or acquiesced in the removal or retention; (3) there is grave risk of danger to the child in the home country; (4) the child is a mature child who objects to removal; and/or (5) the returning the child would violate public policy.  

Even if one of these tests may be established, however, the U.S. Court still could order the return of the child if the Court finds that doing so would better satisfy the goals and objectives of the Hague Convention. 

Therefore, if there is a real and reasonable risk that a child may be abducted, or not be returned to Canada from a foreign vacation, caution should be exercised.

In addition, travel consent forms are helpful, particularly to rebut any argument by the removing parent in making these defences to try to keep the child in the foreign country.

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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CAN I TAKE OVER THE RESPs FOR THE KIDS?

You and your partner separate. What about the RESPs that you have accumulated during the relationship for the children? Commonly parents dispute who may and how to administer RESPs on relationship breakdowns. Often one co-trustee believes he or she should be responsible for the RESPs solely, without the involvement of the other.

An RESP is, effectively, a trust fund. Like other trusts, it is possible for one of the parent co-trustees to remove the other, legally. The parents hold the trust fund, as co-trustees, for the benefit of the beneficiaries, the children. So long as the RESP is properly established, specific trust-related legal documentation is not generally required. Each parent is held to a higher standard, as a trustee, and is a fiduciary to the children as the trustee of their trust funds. Therefore, if a parent acts inappropriately, the parent at fault may not only be removed, but be subject to a breach of fiduciary claim, too. 

If the parents/trustees cannot co-operate to administer the trust fund together, one can seek the removal of the other as a co-trustee and, if the grounds to do so are proved, the Court will likely remove one of the parents. The Court will apply the traditional legal test and factors for any co-trustee seeking the removal of another co-trustee, as sometimes arises in other types of trust arrangements, like estates.

The recent case in Ontario about this: McConnell v. McConnell (2015 ONSC 2243, CarswellOnt 4939).

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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Spousal Support - Unmarried? Yes, You May Still Be Entitled. Some Basic Tips - What You Need To Know About Spousal Suport in Ontario

Spousal support.........some basic points to consider:

Generally, there are three types of spousal support in Ontario: (1) compensatory; (2) contractual (i.e., pursuant to a domestic contract, or “pre-nup”, for example; and (3) non-compensatory (the most common type of support ordered by Ontario Family Courts) currently, which is generally thought of as a ‘needs-based’ type of support. “Need”, at least on an interim basis, generally goes beyond basic necessities and is most often assessed based on the standard of living to which the claimant became accustomed during the relationship.  

A recent Ontario case is illustrative: Knowles v. Lindstrom, 2015 Ontario Superior Court

In this case, the Court affirms these general principles for spousal support in Ontario:

- Unmarried spouses may be entitled to spousal support under the Family Law Act of Ontario, if they have cohabited continuously for not less than three years (section 29)

- After a separation, generally, spousal support entitlement will begin as of when the claim for support is made (which should be in writing, for certainty)

- The test for whether a married or unmarried spouse is entitled to spousal support an on interim basis (including the period following a separation) is whether the claimant can make out, on an interim basis, a prima facie need for spousal support pending the outcome of the case or trial (typically on a non-compensatory basis) – in other words, can he or she satisfy the Court that, when the trial is heard, if necessary, she will likely be determined to be entitled to spousal support?

- If the parties entered a domestic contract before the separation, that is often considered for whether a claimant is entitled to spousal support (i.e., contractual support)

- Generally, the amount of spousal support the Court will order is based on the Spousal Support Advisory Guidelines in Ontario (but they are not the law in Ontario, but rather a guideline oft-utilized by lawyers and the Court to try to assess spousal support amounts) – ultimately, the Court has discretion to determine any amount of interim spousal support, based on the factors in each case

- If the payor earns non-taxable income (i.e., does not pay tax on the income), the Court will typically ‘gross-up’ the payor’s income to calculate spousal support

If you are separating, or may be separated, you should speak to a qualified lawyer about your spousal support position to ensure that you are properly protected and correctly pursue your position, legally. 

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

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CAN I DEAL WITH THE CUSTODY OF MY CHILD IN MY WILL? PRE-PLANNING TIPS FOR YOUR MINOR CHILDREN

You can specify testamentary custody for your child in your last will and testament in Ontario.

Under Ontario’s Children’s Law Reform Act (“CLRA”), if you have custody of a child, you can specify in your Will who you wish to have custody if you pass away, but only for a ninety-day period after your passing. The person you appoint must consent to having custody. However, custody of a child is always subject to the decision of the Court. Your wishes in your Will will be considered, but they are not determinative. The “best interests” of your child will always govern. If your child is able to express them, your child’s own wishes and preferences will be considered, too. 

Choosing your appointee is important, of course. You should discuss it with the person you choose, before you appoint them by your Will. The other parent, if applicable, should agree to the choice and, ideally, make a Will consistent with your choice, too, to avoid uncertainty. 

You can also appoint your Estate Trustee in your Will to be responsible for managing your child’s property until your minor child reaches a certain age, such as eighteen.

If you pass away, but you do not have a Will in place, or you do not specify in your Will how your minor child’s property is to be held and managed for your child, the CLRA requires that a “guardian of property” be appointed to do so. This role may be applied for by the other, surviving parent, or by another person (typically other family members or friends).  Generally the Court will give preference to a surviving parent, but that person’s appointment is not automatic. Any application to be a minor child’s “guardian of property” must be given to the Ontario Office of the Children’s Lawyer, too, which is the government agency in Ontario representing the interests of children in judicial custody and access matters, among other things. They can intervene and raise concerns, too, which can create problems, delay and more expense.

If you are a parent, that does not necessarily mean you have the authority manage your child’s property, or be your child’s “guardian of property”. For example, if your minor child receives property by an inheritance, for example, you may not, as a parent, have the right automatically to hold and manage that property for your child.

 

Generally, any person applying to be a minor child’s guardian of property will have to provide evidence to the Court about your ability to manage the property (i.e., your qualifications and experience) and the views and preferences of the child, if they can be determined. Typically the applying person must submit a management plan for the child’s property, which must address where the child will live, the child’s living expenses, discretionary expenses for the child (such as, for example, music lessons, sports expenses and equipment, camps, etc.), the investment plan for any liquid assets and the financial education of the minor child.

Generally, a guardian of property will be required to transfer all of the property to the child when the child reaches the age of eighteen.

Therefore, it is important that you:

1)         make a proper Will;

2)         specify your choice for custody of your minor child(ren) in your Will; and

3)         specify in your Will how your child’s property is to be managed.

If you have a minor child, but no Will, it may mean that someone will need to apply to be the guardian of property for your child, which can be expensive, time-consuming and uncertain. Similarly, if your spouse or partner passes away, you should not assume that you will automatically have the right to manage your minor child’s property – that may not be the case. 

Good planning for your minor children is essential. 

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

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Family Law

Generally, spousal support is taxable to you. The payor may also tax deduct it. However, lump-sum ‘catch-up’ (i.e., “retroactive”) spousal amounts are different. If you are awarded, or agree on, a lump-sum spousal support payment for the past, it is typically adjusted to reflect that: a) you likely will not be required to pay tax on it; and b) the payor is not likely able to deduct it. The Family Court will take this ‘net’ approach to lump-sum “retroactive” spousal awards, rather than require the parties to try to sort out the tax consequences with the Canada Revenue Agency directly (which usually does not cause a fair outcome for either party, or both). The Family Court will reduce the amount that is payable by multiplying it by the payor’s marginal tax rate, your marginal tax rate, or an average between the two rates, typically. The amount you receive will be less than the monthly amount payable to you in the past, to reflect the tax adjustment. While this may seem unfair, it is currently the law in Ontario. A good case on this (as of June, 2015) is: Hume v. Tomlinson, 2015 ONSC 843. Parties are free to negotiate whatever they wish, but typically the payor will ask for a reduction to reflect the tax for past, catch-up amounts paid. What you need to know:

- Generally, spousal support is taxable to you, tax deductible to the payor

- Lump-sum ‘catch-up’ awards are treated differently, generally

- Lump-sum ‘catch-up’ awards will be adjusted for tax (i.e., you will receive less), typically

This BLAWG is general and informational only. It is not legal advice, or intended to be. Advice for your circumstances may require specific/more information. 

More information or assistance: jason@wardlegal  www.wardlegal.ca

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COLLABORATIVE FAMILY LAW - A NEW, BETTER WAY

Collaborative family law is a way for you to resolve your relationship breakdown issues more respectfully -- without going to Family Court. It is a better alternative to an acrimonious, traditional battle in Court, with high stakes and high legal expenses. It is, basically, a much better way, which many lawyers and other family law professionals now support and encourage.

Collaborative Practice Team meeting

This alternative offers you and your former spouse or partner the support, protection, and guidance of your own lawyers, but also the benefit of child and financial specialists, family professionals, and other experts, if they would be helpful in your circumstances, working together on your team.

For the collaborative alternative, you commit to:

  1. Negotiate a mutually acceptable settlement without having the Family Court decide issues for you.
  2. Maintain open communication and information sharing.
  3. Create shared solutions acknowledging your priorities and objectives, including to live independently in future.
  4. Manage your legal expenses in an informed, constructive way.
  5. Achieve an outcome that is decided upon by you, with the support of your own lawyer, not by a third party, like a Judge.

You can find more information about collaborative family law here:

Ontario Collaborative Law Federation

Wards PC Lawyers - Collaborative

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

 

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