If I Don’t Have Money, Will I Lose in Family Court? Often when spouses separate, one spouse leaves with much greater access to money than the other. Then that spouse wants to hold on to his or her money after separation, so doesn’t want to be cooperative, knowing that his or her ex does not have the money to go very far in Family Court, and so will just have to take what is offered and give up what he or she is entitled to receive. There are a lot of good reasons to avoid going to Family Court. The cost of going through the process is a big one. Family Court costs exponentially more than mediation, arbitration or collaborative practice. But, where one spouse has all the money, he or she may not see any reason to choose a less expensive alternative when his or her ex cannot afford to go to court. Going to Family Court to enforce your rights usually means hiring a lawyer (you have to live in poverty to get Legal Aid, and Legal Aid only covers limited legal issues) and if one spouse cannot afford that, then that spouse may not even be able to make it in front of a judge to get what is fair. Although, often all it takes is getting in front of a judge who is concerned that only one spouse has money for the other spouse to want to negotiate, go to mediation or otherwise stay out of court. When one spouse has found the money to start court proceedings, his or her ex may worry that there is the money to continue them. Starting court proceedings involves a lot of steps, which can make it expensive. So, an uncooperative spouse may choose to be cooperative to avoid spending more on a court case that he or she may lose, and uncooperative spouses may find that they lose a lot. Fortunately, there are some options for people with limited funds to get the legal help they need to go to court: Ask for money from friends and family. This is the most common way people get money for their divorce or to go to Family Court. Often, this money will be a gift, or if it is a loan, then the repayment terms are very favourable. Hire a lawyer on a limited scope retainer. There is a lot more information at the link, but essentially this means hiring a lawyer to give advice only or do one specific task, rather than dealing with every part of the file. The spouse with limited funds then can chose what he or she is going to have the lawyer do and keep control over how much it will cost. Ask a judge for an advance on monies owed. In many cases, particularly when it comes to property division in a divorce, it will be evident right from the beginning that one spouse will owe the other some money in the end. Where the spouse who needs money is the spouse who will be receiving the money, then it is possible to ask for the spouse with the money to pay at least some of it immediately. If the spouse with the money won’t agree to do this, Judges can order the payment on a motion where it is clear that one spouse will owe money. However, this is a motion for “partial summary judgment”, which makes it a little technical, so it is best to speak to a lawyer. Ask a judge for “interim costs and disbursements.” Rule 24(18) of the Family Law Rules says that a judge can order that a party to a Family Court case pay an amount to another party to cover some or all of the expenses for carrying on the case. Judges may do this where it is necessary to “level the playing field” or where one party’s behaviour is so unreasonable it is clear that party will end up paying costs in the end anyway. Get a “Divorce Loan” or a Litigation Loan. These can be expensive loans, but they may be worth it to a spouse who needs to go to court to get anything from their ex. Also, it is often possible to get support orders, especially child support orders, early on in the case. These are for temporary support and are meant to last until there is a trial or settlement. They may not get the support amount exactly right, but they can provide some necessary cash flow to help with Family Court. With the court making automatic orders for disclosure right at the start of the case, the parties are required to provide at least basic financial disclosure within 30 days of the start of the court proceeding. That allows for at least an estimate of what support will be payable. Only unreasonable Family Court litigants will not settle some or all of the support issues. Judges may punish a party for being unreasonable by having that party pay the legal fees for the other party. All of the above options that require a court order can be a little tricky and technical. It is best to at least book a consult with a respected family law lawyer to understand what option is best for you and how to pursue it. Still, there is no denying that court is very expensive. It is the only dispute resolution process that one separated spouse can force the other into. For that reason, and others, some judges struggled between allowing each party the full opportunity to present his or her case the way he or she sees fit, and dealing with matters quickly and potentially leaving the impression that the court was not listening or did not care. Parties with more money can ask for more opportunities to pursue more steps, bring more motions, present more arguments, and generally litigate more aggressively than parties who are trying to do their case on a tight budget. In addition, where judges believe a settlement may be possible, there may be repeated settlement conferences, which one party can use to financially exhaust the other – looking ready to settle but just really trying to multiply the number of court appearances. Many Family Court cases are wars of economic attrition. The party that can stay in the fight the longest can take advantage of the other party’s need to “get out” to leverage a favourable settlement. Or, the party with money can force on a trial, which will be extremely expensive, knowing the other party cannot afford to have a lawyer assist and so the party with less money either has to settle for a reduced amount, or face the prospect of losing at trial because he or she does not know how to conduct a trial, or the laws and rules that apply. Of course, none of this matters when spouses want to work toward a fair arrangement after separation. But parties who want that should not be in Family Court in the first place. When things are nasty enough to go to court, each spouse really should speak to a lawyer about the financial situation on both sides and what that means for what strategy will work best for that spouse. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.” By Fauzan SiddiquiBlog, Family LawDecember 7, 2022August 28, 2023
Divorce and Support Payments: Living in Canada But Married, or Even Divorced Elsewhere? Just because you were married elsewhere, or maybe even have a divorce from a foreign country, does not necessarily mean that our Courts in Canada will not hear your matter. Take for example, a recent case in 2017, where the Court of Appeal[1] handled a case where a Canadian citizen (husband) was married to a person who resided in China (wife). The wife had never come to Canada; however, the couple did have one child born to the marriage when the husband lived in China briefly. The wife sought a divorce in Ontario including spousal support, child support and custody of the child pursuant to the Divorce Act. She further requested equalization of the net family property pursuant to the Family Law Act. In response, the husband filed for divorce in China, seeking a divorce, custody and equalization or property. In response, the wife brought a motion in an Ontario court requesting temporary child support which was granted. The husband then requested that his application should be heard in China. The Ontario court agreed and allowed the application to move forward in China. The underlying reasons were that the application involved custody, access and support; therefore, the hearing should be pursued in the jurisdiction of the matrimonial proceeding. Custody and a divorce were granted by the court in China to the wife. However, the issue of support and equalization were left to be brought forward in the Ontario courts as the husband did not disclose his proper financial information and all his financial holdings were in Ontario/Canada. The Court of Appeal of Ontario was required to determine two questions: Does an Ontario court have jurisdiction to hear and determine a corollary relief proceeding under the Divorce Act following a valid divorce in a foreign jurisdiction? Does an Ontario court have jurisdiction under the Family Law Act to determine the issue of child support after a foreign court has issued a divorce? The Court of Appeal held that Ontario Superior Court has jurisdiction to determine the issues of child support and equalization of net family property pursuant to the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”). However, there is no jurisdiction under that legislation, or otherwise, for the Superior Court to order spousal support. From this case comes an important question – Will a foreign divorce be recognized in Canada? The Canadian courts have stated that divorces obtained in other countries will be held valid if the laws of the parties’ domicile (at the time of their divorce) would have recognized a foreign divorce.[2] In Canada, s. 22 of the Divorce Act states that a divorce granted by a foreign jurisdiction will be recognized in Canada if either former spouse was ordinarily resident in that foreign jurisdiction for at least one year immediately preceding the commencement of the proceedings for the divorce. In looking for a divorce, that is also a requirement. At least one of the parties has to be considered a “resident”. For more information on what that may look like, contact our Family Law Department at Devry Smith Frank LLP. What about remarriage? Part of the process for authorization to remarry in Canada involves obtaining a legal opinion from a lawyer. The lawyer must give reasons why the divorce should be recognized in Ontario. If you need help with a foreign divorce being recognized in Ontario, it is worthwhile to discuss your case with a family lawyer in our office. If you have more questions related to Family Law, please visit our website or contact Katelyn Bell at Devry Smith Frank LLP to discuss any questions regarding your specific family law situation and your options. She can be reached at 416-446-5837 or Katelyn.bell@devrylaw.ca. This blog was co-authored by Law Student, Kathleen Judd. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations `and needs.” [1] Cheng v. Liu, 2017 ONCA 104 [2] Zhang v. Lin, [2010] A.J. No. 755, 2010 ABQB 420, 500 A.R. 357, at para. 53 By Fauzan SiddiquiBlog, Family LawNovember 3, 2022June 10, 2023
The Other Party Won’t Follow our Court Order – What do I do? Book a consultation with us Name Phone Number Email Message Send “Orders are not suggestions” is a common sentiment in family court.In light of the time, money, and effort that is involved in securing a final court order, it is no wonder that someone would become frustrated by the other party’s refusal to comply with its terms.A common question faced by lawyers, is what to do when one party fails to abide by an order – What are the options?One form of legal recourse is to bring a contempt motion, asking the Court to find that the other party is in contempt of the court order. In family law proceedings, motions for contempt are governed by the Family Law Rules. Payment orders may not be enforced by a contempt motion.Being found in contempt is a legal consequence for non-compliance with an order. The goal is to deter individuals who feel that they do not need to comply with some or all of the terms of an order. Parties who fail to comply not only interfere with the court process, but obstruct the course of justice. The consequences for being found in contempt range from fines to jail time. Ultimately, the objective with a finding of contempt is compliance.In determining whether a party should be found in contempt, the Court will consider the following:Was the party aware of the order’s existence at the time of the alleged breach?Did the order clearly and unambiguously state what should or should not be done?Did the party who allegedly failed to comply do so in an intentional way?Was the conduct demonstrated beyond a reasonable doubt? This is in part because findings of contempt are quasi-criminal in nature.It is important to keep in mind that a finding of contempt is a remedy of last resort. The Court found in Hefkey[1] that a contempt finding should be made sparingly and with great caution.In family law cases, the Court will be especially concerned with whether the parties have acted in a way that accords with the children’s best interests. In Jackson[2], The Court noted that a party may be excused for non-compliance if it was objectively in the best interests of the child(ren). The Court also acknowledged the complex emotional dynamics that are involved in family law disputes, and the desire to avoid escalating the conflict further.The importance of complying with the terms of a court order cannot be understated, and the Family Law Rules provide the Court with a range of remedies for non-compliance. That said, the Court will often exercise their discretion to find a party in contempt sparingly, and are hesitant to do so when there are other reasonable options available to send a message that the court order must be followed.If you have more questions related to family law matters, please visit our website or contact Sarah Robus at Devry Smith Frank LLP to discuss any questions regarding family law and your options at 249-888-4642 or sarah.robus@devrylaw.ca.This blog was co-authored by Law Student, Kathleen Judd.“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.” [1] Hefkey v Hefkey, 2013 ONCA 44[2] Jackson v Jackson, 2016 ONSC 3466 By Fauzan SiddiquiBlog, Family LawOctober 27, 2022March 4, 2024
Drawing the Line: Extended Families May Face Conspiracy Claims In Assisting Child Support Evasion – Leitch v Novac 2020 ONCA 257 When a couple divorces, it is common for extended family to provide support for their loved ones. Some families get involved and assist with finances while others provide emotional support for the separated spouse. While most families are invested in the outcome of a couple’s divorce, some families take extreme measures to ensure that the separated spouse reduces his or her financial obligations for support or property. In the past, when a spouse hides income or assets with the assistance of extended family, the court’s sanctions have largely been limited to an order of costs against the offending spouse or a finding of contempt. While claims against extended family members have been made in the past, these claims were uncommon and were largely unsuccessful. In recent years, the Ontario Court of Appeal changed the landscape on conspiracy in permitting a conspiracy claim against a spouse’s family for assisting him to divert income payable for child support. In Leitch v Novac 2020 ONCA 257, the wife sued her husband, her husband’s parents, a family corporation, and several trusts and trustees, alleging that her husband’s family and entities conspired to defeat her family law claim and conceal her husband’s assets and income. After the couple separated, the husband’s father incorporated a company to provide management services to a casino operation. The father and husband agreed orally that the husband would receive 40 percent of the management fees over the life of the contract. Before the contract ended, the casino owner bought out the contract for nearly $6 million and the lump sum was paid to the father’s corporation. Instead of providing the husband’s 40 percent share for spousal and child support, the husband’s father kept all the income from the buyout. The father, the corporations, and the trusts brought a motion for partial summary judgment to have the claims of conspiracy dismissed before trial. The motion judge awarded partial summary judgment, concluding that there was no unlawful conspiracy and that the wife did not establish damages but that the wife could still pursue a claim to impute additional income for the purpose of determining support. The wife appealed the summary judgment order, the costs award and the order for security for costs and preservation of assets to the Ontario Court of Appeal. The Court of Appeal was asked to consider whether the motion judge erred in law in awarding partial summary judgment and in her analysis of the tort of conspiracy. Ontario Court of Appeal Allows Appeal Against Extended Family For Conspiracy In order to claim conspiracy against the extended family and the related entities, the wife had to prove whether or not the means used by the father and the husband were lawful or unlawful, whether the predominant purpose of their conduct was to cause her injury, or if the conduct was unlawful, whether the father and the husband should have known that injury to the wife was likely to result. The Ontario Court of Appeal allowed the wife’s appeal and emphasized the importance of the tort of conspiracy in family law where a third party assists a payor in hiding income or disclosure. Justice William Hourigan asserted that if the tort of conspiracy was not available, co-conspirators would be able to facilitate non-disclosure and are willing to “break both the spirit and letter of the family law legislation to achieve their desired result, including by facilitating the deliberate hiding of assets or income.”[1] If the Court of Appeal accepted the motion judge’s analysis, co-conspirators who engage in conspiracy could do so with impunity. The Court of Appeal noted that the tort of conspiracy would allow judgment against a co-conspirator which is often the only means by which a recipient will be able to satisfy a judgment. Further, the Court of Appeal addressed the denial of justice that may occur in family law cases where third parties assist litigants, referring to these third parties as “invisible litigants”. Beyond providing emotional support, invisible litigants become active participants in litigation to achieve their desired result which includes facilitating nondisclosure and deliberating hiding assets and income. Using the tort of conspiracy would be necessary in certain situations to ensure fairness and justice in family law cases. Conclusion The Court of Appeal’s decision in Leitch expands the tort of conspiracy in family law within Ontario. This case should be regarded as a reminder that non-disclosure and deliberate concealment of assets and income would not be tolerated. Family members who act as invisible litigants are not immune from liability and should be cautious in interfering with family law disputes. If you have any questions about your family law matter, please contact the Family lawyers at Devry Smith Frank LLP at (416)-449-1400 or info@devrylaw.ca. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.” This blog was co-authored by Abby Leung [1] 2020 ONCA 257, para 45. By Fauzan SiddiquiBlog, Family LawSeptember 9, 2022October 18, 2023
The Courts Analyze “Material Change” – Again The court (again) explores – What constitutes a material change in the recent Court of Appeal decision, Licata[1]. In order to bring a motion to change before the court, to change a final order, there must be a “change in circumstances”, since the last order (dealing with support) was made.[2] The change in circumstances can be from “any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support”.[3] It is important to know that if you file a motion to change support, you MUST demonstrate that a material change of circumstances was not contemplated by the parties when the existing final order was made. Furthermore, you must show that if such a change had been known, at the time the final order was made, it “would likely have resulted in different terms”.[4] In Licata,[5] the father wanted to stop paying child support for his children, who had reached the age of majority and were enrolled in a post-secondary education program. The Order in existence had addressed the issue of the child being over the age of majority and determined that the child was still a “child of the marriage” as the child could not withdraw from parental control since he was attending university. Who is a “Child of the Marriage”? Some think that a child of the marriage is a child that is under 18. This is not true. A child of the marriage can be a child who reaches the age of majority. According to the Divorce Act definition, a child remains a “child of the marriage” if they are “under [parental] charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life”[6]. One way of meeting this onus of remaining under parental control is when a child is enrolled in a higher education.[7] What is a Material Change? The Supreme Court of Canada has set out the test for determining “material change”: a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet those needs; the change must materially affect the child; and the change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.[8] In Licata[9], the Court of Appeal restated that the starting point for a motion to change the support for the child would be a material change in circumstances that were not anticipated by the parties when the Order in existence was made. The onus of demonstrating a “material change” is on the party bringing the motion to change. In this case, the motion judge started from a position of there being a material change based on – the child reaching the age of majority. The Court of Appeal found that this was an error in principle because the final Order had already determined that the child was over the age of majority when the Order was made. As such, the child reaching the age of majority was not a material change that had occurred after the final Order (and therefore does not create a material change justifying a variation). What is a material change that would qualify for a variation in child support? The courts have determined that they will only consider a material change that is “significant and long-lasting”. A court will exercise caution before changing an existing support order. In Licata[10], this was not a case of initially proving a child remained a “child of the marriage”. This case was a motion to change that would require a change in circumstances in order to justify a new order. As such, the only relevant question for the Court of Appeal to consider was proving a material change in circumstances since the last order and more specifically, whether it was beyond the parties’ contemplation that a child of the marriage would take an extended period of time to complete university studies. Ultimately, the Court of Appeal found that the trial judge had erred in terminating child support stating that “child support should not be terminated until the father can demonstrate that there has been a material change in circumstances not contemplated at the time of the previous Order and that the child is able to withdraw from parental control.” This demonstrates that the first hurdle of a moving party applying for a variation order is whether there is a material change in circumstances. The Court of Appeal further stated that: “A motion to change must be based on the proper evidentiary foundation and an analysis of whether there is a material change in circumstances…” Filing a motion to change without a material change in circumstances will result in not only a case being dismissed but could result in a significant cost award against the moving party. If you are contemplating returning to court to vary/change an existing Order, it is worthwhile to discuss your case with a family lawyer prior to filing a motion to change. If you have more questions related to Family Law, please visit our website or contact Kenna Bromley at Devry Smith Frank LLP (‘DSF’) to discuss any questions regarding your specific family law situation and your options at 249-888-6641 or kenna.bromley@devrylaw.ca. This blog was co-authored by Summer Law Student, Kathleen Judd. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.” [1] Licata v. Shure, 2022 ONCA 270 [2] Divorce Act, s. 17(4) [3] Federal Child Support Guidelines, SOR/97-175, s. 14(b) [4] L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775, at para. 32, citing Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, at p. 688 [5] Supra note 1 [6] Divorce Act, s.15.1(1) [7] W.P.N. v. B.J.N., 2005 BCCA 7, 249 D.L.R. (4th) 352, at para. 18 [8] Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at paras. 10-13. [9] Supra, note 1 [10] Ibid By Fauzan SiddiquiBlog, Family LawJuly 6, 2022August 15, 2022
Parental Mobility Rights – When does Relocation become Parental Child Abduction? RELOCATION When a parent with primary decision-making responsibility for a child decides to relocate after a separation due to a new job, proximity to family, or a relationship, the move will certainly affect the access parent. RECENT AMENDMENTS TO THE DIVORCE ACT The law pertaining to the relocation of a child is found under section 16.9 of the Divorce Act. The new section 16.92(1) requires the court to consider additional factors when deciding whether a relocation should be permitted: The reason for the relocation The impact of the relocation on the child The parenting time and involvement that each person has with the child Whether the person planning the relocation has given the proper notice Whether there is a court order or agreement that says a child is supposed to live in a certain place Whether the proposal to change the parenting arrangement is reasonable, and Whether the people involved have been following their court order or agreement.[1] The exceptions to providing notice prior to moving are 1) if you have permission from the court not to give notice if there is family violence, or 2) if you have a court order saying you do not have to give notice of a move.[2] PARENTAL CHILD ABDUCTION WITHIN CANADA In Canada, the most common form of child abduction is by a parent or guardian. The term parental child abduction refers to when a parent/guardian takes, detains, or conceals a child from the other parent/guardian. It is not uncommon for other family members to assist the abducting parent/guardian with removing or concealing the child[3]. If the child is believed to have been abducted locally, it is important to contact local law enforcement immediately. The matter can often be resolved through the civil courts. As a parent/guardian, you can apply to the family court to have the child returned to you. In Ontario, you will need a parenting order under the Children’s Law Reform Act (“CLRA”). Sections 36 and 37 of the CLRA allow the courts to grant a parental order where the child is unlawfully withheld and to prevent unlawful removal of the child respectfully.[4] If the child has been abducted to a different province, a parenting order or agreement is necessary to have any decision-making responsibility and parenting time arrangements enforced.[5] If you do not have a parenting order or parenting agreement in place, you may need to apply for a parenting order in family court.[6] The order should be obtained in the jurisdiction where the child resided, often referred to as the “habitual residence.” If you are divorced or getting a divorce, but a parenting order has not yet been made, the parenting order needs to be sought under the Divorce Act.[7] If you already have a parenting order, you may be able to have it enforced in another Canadian province or territory. According to section 20(3) of the Divorce Act, the court can make a parenting order have legal effect throughout Canada.[8] If you have an informal agreement in place, it may not be enforceable by the courts and therefore it is recommended that you apply for a parenting order pursuant to section 16.1(1) of the Divorce Act.[9] If you are not getting a divorce, then provincial laws will apply. RELOCATION OR PARENTAL ABDUCTION? – CASES TO CONSIDER Parental Abduction In R v Finck, OJ No 2692, the mother died almost one year after the birth of child and left instructions that her brother should have decision-making responsibility and assume parental responsibilities. The father commenced proceedings to alter the parenting order. Ultimately, parental responsibility was awarded to the mother’s brother, with generous rights of access granted to the father. The father took the child to Nova Scotia and kept the child there until he was apprehended. The child was returned to the mother’s brother and the father was charged with abduction in contravention of the parenting order with intention of depriving the legal guardian of possession of the child. Relocation In Buckner v Card, 2007 ONCJ 51, the parties were the parents of a 22-month-old child. Since the child’s birth, the mother had been his primary caregiver while the father exercised access on a casual basis. Without notice to the father, the mother had moved to Alberta with the child. The court granted the mother sole decision-making responsibility as she had been the child’s primary caregiver. While the mother should not have moved unilaterally, the court found that she wished to move for legitimate reasons and not to frustrate the father’s access. The father’s proposed plan was to continue working full-time and he would delegate his childcare responsibilities to others during his work absence, which was considerable. The mother was better off in Alberta financially and the father’s present accommodations and plans were “sketchy”. It was not in the best interest of the child for the mother to be forced to return to Red Lake, Ontario. The distance (22-hour drive) was deemed not insurmountable for the father to exercise access. The court held it was in the child’s best interests that he remains in his mother’s care in Alberta. In the recent case of Fawcett v Slyfield, 2021 ONCJ 459, the mother moved the children from Woodstock, Ontario to Manitoba following the parties’ separation, over the objections of the father, without a written agreement or court order, and without making arrangements for any meaningful parenting time for him. While the father contested mobility and also decision-making and primary residence, the court ultimately allowed the mother to relocate with the children to Manitoba, pending trial. PENALTIES FOR PARENTAL ABDUCTION Parental abduction is a serious criminal offence and is governed by sections 281 and 282 of the Criminal Code. A parent or guardian convicted of abducting a child can face up to 10 years in prison.[10] However, abduction does not automatically revoke the offender’s right to access. Parental abduction will be considered in determining whether sole decision-making responsibility is appropriate. Canadian courts take a holistic approach in assessing what is in the “best interests of the child”.[11] For more information regarding parenting arrangements, divorce, property division, marriage contracts, or any other family law-related topic, please contact our family law department at 416-449-1400 or fill out our intake form. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” *This blog was co-authored by Owais Hashmi* [1] Ibid at s 16.92(1). [2] Ibid. [3] [4] Children’s Law Reform Act, RSO 1990, c C.12, s 36-37. [5] “Child abduction by a family member” (26 October 2021), online: Ontario. [6] Ibid. [7] Ibid. [8] Divorce Act, RSC 1995, c 3 (2nd Supp.), s 20(3). [9] Ibid at s 16.1(1). [10] Criminal Code, RSC 1985, c C-46, s 281(a). [11] “Defining the Best Interests of the Child” (07 January 2015), online: Department of Justice. By Fauzan SiddiquiBlog, Family LawJune 14, 2022November 8, 2023
Unvaccinated and Separated? What this means for time with your child In the past two years, COVID-19 has wreaked international havoc and the challenges are intensified when it comes to governance of parenting issues for separated parents. While the unvaccinated have found creative temporary solutions in the face of government restrictions by exercising at a home gym rather than attending a favourite spin class or ordering delivery instead of dining at one’s favourite restaurant, a comparable temporary option is not available for unvaccinated parents. Unvaccinated parents without valid medical exemptions are facing restrictions on parenting time with their child including temporary suspension of all in-person parenting time until they become fully vaccinated. Some restrictions imposed by the courts include reducing the frequency and duration of in-person visits, ordering in-person visits to take place exclusively outdoors and requiring the unvaccinated parent and child to wear masks for the duration of each visit. In the case of S.W.S v. R.S[1], the mother brought a motion to change the unvaccinated father’s in-person parenting time with their two children, ages 8 and 4, to virtual. While neither child, in this case, was immunocompromised, the court held that “the father’s choice not to vaccinate himself directly affects the physical safety of the children – a primary consideration under subsection 24 (2) of the Act.”[2]. The mother was fully vaccinated and followed all COVID-19 protocols and subject to the father becoming fully vaccinated, the father’s parenting time was reduced from alternating weekends and every Tuesday to just 2 hours every Sunday (in-person) with all parenting time to remain outdoors. In the case of A.G. v. M.A.[3], the mother brought a motion to suspend the partially vaccinated father’s in-person parenting time with the parties’ 2-year-old daughter. The father relied on a one-line medical note from his doctor claiming that he is medically exempt from taking the second dose of the COVID-19 vaccine due to a severe allergic reaction to the first dose of the vaccine. Notwithstanding the father’s lack of full vaccination, without an acceptable medical exemption, the Court concluded that the father’s partial vaccination status warranted some in-person parenting time with restrictions. The father’s in-person parenting time with the child was limited from 2 hours weekly to 1 hour per week (in-person) exclusively outdoors or virtual if the weather is too inclement. In reaching this decision, the following factors were considered by the Court: the child’s medical frailties which may leave her exposed to greater risk of contracting COVID-19; The father’s partial vaccination status exposes him to greater risk of contracting COVID-19.[4] In the determination of best interest of the child, the court places considerable importance on the child’s “safety, security and wellbeing” as mandated by the Children’s Law Reform Act. The father had not tendered acceptable evidence to the court to properly assess the conclusion of his doctor that he should be exempt from his second COVID-19 vaccine. If you are partially vaccinated or unvaccinated, consider: If possible get fully vaccinated. If you intend to rely on a medical exemption, ensure that your medical exemption is prepared by either a physician or a registered nurse and that your medical note complies with the requirements for medical exemption letters set out in the Ontario Ministry of Health’s paper on Medical Exemptions. Consider virtual parenting options if you need time; however virtual parenting time is not a suitable long term solution and it cannot replace in-person parenting time, especially if a child is young particularly when a child is young. If you have any further questions on the implication of COVID-19 and your parenting rights or you would like to speak with someone about your separation terms, please contact Sanaz Golestani from Devry Smith Frank LLP at Sanaz.Golestani@devrylaw.ca or call (289) 638 3174 for assistance with this matter. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see or speak to a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” *This blog was co-authored by Angela Victoria Papeo* [1] S.W.S v. R.S 2021 ONCJ 646 [2] S.W.S v. R.S 2021 ONCJ 646 at. para. 35. [3] A.G. v. M.A., 2021 ONCJ 531 [4] Fully vaccinated, the court is referring to two doses of an approved vaccine. By Fauzan SiddiquiBlog, Family LawJanuary 25, 2022March 27, 2024
Does my spouse get a share of the home I owned before we were married? For many couples, the matrimonial home represents the largest and most significant asset. It is therefore incumbent to understand how the matrimonial home is treated upon a breakdown of the marriage and how to protect and preserve your rights if you brought the home that is your matrimonial home into the marriage. Property Division in Ontario Property division rights for married spouses are governed by the Ontario Family Law Act. Upon a marriage breakdown or if one spouse dies, each spouse is entitled to an equal division of the value of all of the assets that have been acquired during the marriage, subject to certain exceptions. As part of this calculation, a spouse is entitled to receive a credit for date of marriage assets brought into the marriage unless the property becomes the matrimonial home. The Matrimonial Home In Ontario, there are special rules with respect to the treatment of the matrimonial home once a marriage ends. Part II of the Family Law Act deals entirely with the matrimonial home and defines what it is and sets out the unique treatment and rules regarding the matrimonial home. Section 18(1) of the Family Law Act defines a “matrimonial home” as: “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.”[1] For the purposes of calculating an equalization payment, if a spouse brings a home into the marriage and that home becomes the family residence, then the right to deduct the value of the home as a date of marriage asset is lost by that spouse. Instead, the value of the matrimonial home will be included as a date of separation asset for the spouse who owns the home. If you are married, you can have more than one matrimonial home, however, the Ontario Court does not have authority to grant one spouse the exclusive right to possession of the home if it is located outside of the province. Unique Treatment of the Matrimonial Home Under the Family Law Act Unless there is an agreement or a court order for exclusive possession of the matrimonial home granted to one spouse, under Section 19 of the Family Law Act, both spouses have an equal right to possession of the matrimonial home.[2] This means that absent an agreement or court order, neither spouse can lock the other out of the matrimonial home. The criteria that the Court will consider when determining the issue of exclusive possession is set out under section 24(3) of the Family Law Act. Another unique characteristic of the matrimonial home is the absence of court order or consent, neither spouse can sell or encumber any interest in a matrimonial home. Protecting your Home with a Marriage Contract Whether you are currently married or plan to get married, you can enter into a marriage contract to protect and preserve your rights in the event of a breakdown of your marriage. To ensure your rights are protected you should enter into a marriage contract that is prepared by an experienced Ontario family lawyer. For more information contact David Heppenstall at 416-446-5834 or david.heppenstall@devrylaw.ca. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” [1] Ibid, s 18(1). [2] Family Law Act, supra note 1, s 19. By Fauzan SiddiquiBlog, Family LawJanuary 11, 2022June 30, 2023
Filing Mistakes Prove Costly No Leniency for Self-Represented Litigants Across Canada, there continues to be a rising trend in self-represented litigants. With this comes the need for these individuals to understand the rules and procedures of the court to ensure efficient, fair and affordable access to justice. In the recent decision of Bloomer v Workers Compensation Board (2020), Alberta’s Court of Appeal confirmed that motion judges have no authority to correct the procedural missteps of self-represented litigants, reinforcing the expectation that self-represented litigants familiarize themselves with the relevant legal practices and procedures pertaining to their individual case.1 While the Court acknowledged the disadvantages encountered by self-represented litigants, it nevertheless confirmed that the same statutory regime and rules apply regardless of whether the litigants have legal representation or not. Self-represented litigants may be shown some flexibility in the judicial process in the manner in which they are guided and shown leniency at times. However, there are instances where Courts are limited in their flexibility, where there simply are no redo’s, such as with court filings. Filing Mistakes Can Prove Costly Hypothetical: Let’s say you come and notice that your child’s vehicle is damaged; it appears to have been rear-ended while parked, and you have good reason to believe it was the fault of your neighbour. (Ex: Security camera footage). Since the vehicle is owned by your 17-year-old, you decide in an effort to save costs to bring an action in small claims court against your neighbour for the cost of the repairs. You draft up the claim under your child’s name, file it in the Court’s e-filing system and click submit. Moments later, you realize you used the wrong form and now you need to correct the form you’ve submitted. What’s the fix and will it cost you? Unfortunately yes, and the fix is not as straightforward as hoped. Since the claim involves a minor, or as the court defines it (a person with a disability), the court clerk would not be able to accept a Form 23A “Intent to Withdraw” or “Notice of Discontinuance” due to Rule 23 of the Rules of Civil Procedure. A registrar is unable to sign off on this change due to the involvement of a minor. RULE 23 DISCONTINUANCE AND WITHDRAWAL 2 Discontinuance by Plaintiff 23.01 (1) A plaintiff may discontinue all or part of an action against any defendant, (a) before the close of pleadings, by serving on all parties who have been served with the statement of claim a notice of discontinuance (Form 23A) and filing the notice with proof of service; (b) after the close of pleadings, with leave of the court; or (c) at any time, by filing the consent of all parties. R.R.O. 1990, Reg. 194, r. 23.01 (1); O. Reg. 427/01, s. 10. (2) If a party to an action is under disability, the action may be discontinued by or against the party only with the leave of a judge obtained on motion under rule 7.07.1. O. Reg. 19/03, s. 6. To correct this mistake, it will require bringing a motion to a judge to explain what happened with respect to filing the incorrect form. When drafting this motion, the Court advises to provide notice to the other side, and if possible, to obtain their consent. If the opposing side has already filed an intention to defend, this change will likely involve cost consequences. There are limits on the Court’s ability to relax the rules for self-represented litigants, particularly when it comes to contraventions or issues of non-compliance that affect deadlines, limitation periods and filing mistakes. Takeaway: When going the route of self-representation, be careful when filing and familiarize yourself with the rules, procedures and protocols applicable to your case because mistakes can be costly. Conclusion Access to justice has become an important issue of focus in many areas of the law, particularly in family courts. It is important to rely on the help of experts and legal professionals to help navigate and guide you through the process. This blog was co-authored by Student-At-Law Amar Gill. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please contact a lawyer. Each case is unique and different and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” Sources [1] https://www.canlii.org/en/ab/abca/doc/2020/2020abca334/2020abca334.html?resultIndex=1 [2] https://www.ontario.ca/laws/regulation/900194 By Fauzan SiddiquiBlog, Family LawNovember 19, 2021November 19, 2021
What If Separating Parents Disagree Over Vaccinating Their Children? Vaccine debates are currently at the forefront of public opinion. Unsurprisingly, many separating couples stand on either side of this debate. This leads to the question: what if separating couples disagree as to whether their children should be vaccinated? In our previous blog, we predicted that courts would likely resolve this issue in accordance with government policy and recommendations. In other words, if the Ontario government finds that vaccines are safe for children, then the Ontario courts would likely agree. All Ontarians turning 12-years-old before the end of 2021 are now eligible to receive their first dose of the COVID-19 vaccine. As well, the Ontario government is currently preparing to roll out vaccines for children between the ages of 5 and 12 – what does this mean for separating parents? Health Care Consent Act The decision to receive a vaccine (or any health care treatment) lies with the individual, so long as the individual is able to provide “informed consent” to the treatment in question.[1] This extends to children as well, unless there is reason to believe the child is unable to appreciate the consequences of accepting or refusing the treatment (or vaccine). Generally, the older the child, the more likely they will be in a position to provide informed consent, and vice versa. This issue is ultimately decided by the health care professional who is administering the treatment. Assuming the child is too young to consent to treatment for herself, we move on to the next step. Decision-Making (Custody) Orders or Agreements The legal term “custody” was recently replaced with “decision-making”. If one parent has a custody or decision-making order or agreement[2] in their favour, then they will have authority over the child’s medical decisions, where the child is unable to make those decisions for herself. No Orders or Agreements in Place If separating parents are not subject to a court order or separation agreement setting out decision-making for their children, then they will need to look to a court or arbitrator to decide the issue. The sole factor in a court/arbitrator’s decision on this issue will boil down to the best interests of the children. The case of A.C. v. L.L. 2021 ONSC 6530 is the one Ontario family lawyers and separating parents have been waiting for. The parents, in this case, had triplets, each 14 years of age. Father wanted the children to receive the COVID-19 vaccine, while Mother disagreed. Mother would not provide Father with the children’s health cards. The court ultimately sided with the Father, reasoning as follows: [28] The responsible government authorities have all concluded that the COVID-19 vaccination is safe and effective for children ages 12-17 to prevent severe illness from COVID-19 and have encouraged eligible children to get vaccinated. These government and public health authorities are in a better position than the courts to consider the health benefits and risks to children of receiving the COVID-19 vaccination. Absent compelling evidence to the contrary, it is in the best interest of an eligible child to be vaccinated. The court ultimately ordered Mother to provide Father with the children’s health cards within 5 days. Notably, however, the court did not order that the children “shall” be vaccinated, but only that they will be “entitled” to receive the vaccine if they so wish. This is due to Health Care Consent Act, which allows individuals (including children) to decide for themselves whether they wish to be vaccinated. When Ontario rolls out vaccines for children 5 and up, the same legal analysis is likely to apply: there will be a presumption in favour of vaccination unless a parent is able to provide compelling evidence to the contrary. In practical terms, this “compelling evidence” would likely need to be credible, expert evidence confirming that vaccination would be contrary to the child’s best interests, likely due to pre-existing health conditions. [1] Health Care Consent Act, section 4. [2] Parents with separation agreements establishing decision-making responsibilities should be aware: courts still have the ability to disregard separation agreements and impose an order that is in the child’s best interests. However, separation agreements are generally informative and persuasive to a court. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.” By Fauzan SiddiquiBlog, COVID-19, Family LawNovember 15, 2021November 15, 2021