Custody, Access and Covid19 In the recently decided case of Ribeiro vs Wright, the Ontario Superior Court of Justice affirmed that parties with a pre-existing separation agreement or court order in place with respect to access rights cannot unilaterally change their access schedule on the basis of COVID-19. The court stated that parties should not attempt to take advantage of the current challenges in relation to COVID-19 and seek to unilaterally not put in place different schedules for access. Parents who share custody of their children should continue to respect custody agreements during Covid-19 and continue their split parenting arrangements with their former spouse unless there is specific evidence that the child’s health is at risk. CHALLENGES AFFECTING PARENTS & ACCESS DURING COVID-19 There are some challenges in relation to access rights and issues that affect family law matters in relation to COVID-19 – including but not limited to the following: Parents who are unable to work from home and have to interact with the general public on a regular basis Example: Individuals who are considered to be essential workers (Nurses, Grocery Clerks, etc.) Parents returning home to Canada from abroad who must self isolate for a period of 14-days Parents who fail to comply with social/physical distancing recommendations from public health or parents who fail to take reasonable health precautions in relation to the safety of their children Parents who rely on their own parents for child care EMERGENCY ORDER IN ONTARIO COURTS & FAMILY LAW As Ontario courts are still closed and operating in a virtual capacity due to the emergency order in place currently, courts are continuing to only hear urgent matters on a case-by-case basis. If you have additional questions pertaining to family law matters, access or additional COVID-19 related issues related to family law, feel free to contact the lawyers at Devry Smith Frank LLP to discuss your rights and options. “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.” By Fauzan SiddiquiBlog, COVID-19, Family LawJune 30, 2020September 29, 2020
3 important things to keep in mind when the Children’s Aid Society comes knocking The Children’s Aid Society is knocking at your door. Now. You might have been warned of their visit, but they do not need to give you notice. The visit could be the result of someone giving Children’s Aid information about your parenting which raises concerns about the safety or well-being of your children. You may never know what made them come knocking. You must answer the door. You must let them in. This intrusion can be alarming and upsetting. But what do you do next? How can you act to best keep your family together? CONTACT A FAMILY LAWYER OR A CHILD PROTECTION LAWYER The stakes are high. Children’s Aid could take your children away as a result of this visit. If you have been given advance notice, contact a family lawyer or a child protection lawyer as early as possible. If you did not receive notice, contact a family lawyer or a child protection lawyer as soon as practicable. The circumstances of each situation are unique; tailored advice to your situation may be critical in preventing the seizure of your children, or in expediting their return if they are removed. Speak to a lawyer before signing any kind of “agreement” with Children’s Aid. It is possible that the Society may request “authorizations” from you to speak with other people as part of their investigation—e.g. teachers, doctors, et cetera—and your consent will simply speed up this process (they will be able to eventually speak with them regardless of whether you consent or not). Generally speaking, if you are uncertain what you are being asked to sign, speak with a family lawyer or a child protection lawyer first. If any criminal charges such as assault or sexual assault are alleged, do not discuss these matters with Children’s Aid until you have spoken with a lawyer. Children’s Aid works with the police and will report everything you say to them and they may be used against you. That being said… BE WELCOMING, FRIENDLY, AND CO-OPERATIVE Children’s Aid is not the police. Work together with them and show that you share their concern for the safety and well-being of your children. Be a “team player,” knowledgeable that the goal is to ensure that all that happens is in the best interest of the children. Do not refuse to meet with Children’s Aid or otherwise behave in a manner that raises their suspicion that you have something to hide. If you had time to prepare for the visit, ensure your home makes a good first impression. This means ensuring the home covers the basics: safe for children with enough food but also demonstrates that this is a happy and loving home. Children’s Aid will want to inspect everywhere—e.g. see the children’s rooms—so be welcoming and offer them a complete tour. During the COVID-19 pandemic, there may be a heightened emphasis on health and safety. Show Children’s Aid that you and your family are taking appropriate measures to prevent the spread of the virus. Do the children know to wash their hands before eating? Do they practice social distancing from their friends or wear appropriate face coverings when in public places? ALLOW CHILDREN’S AID TO SPEAK WITH YOUR CHILDREN ALONE Children’s Aid has the right to interview your children without your consent. Facilitate this and make it easy for them. As a parent, do not create the impression that you are attempting to interfere or hide something. While children have the right to have a lawyer present while speaking with Children’s Aid, this is the right of the child—not the parent. It must be the child who arranges to have a lawyer present if this is their desire. Do not assume that Children’s Aid has completed its investigation until you are notified that the file is closed. Ask for disclosure if the investigation is ongoing. After the home visit, you may be watched from a distance. Knowing how to act and respond to an investigation from Children’s Aid may improve the chances that your family remains together. If you are uncertain, contact a family lawyer or a child protection lawyer as soon as possible. “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.” By Fauzan SiddiquiBlog, Family LawJune 29, 2020September 29, 2020
“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.”
How to Deal with an Emergency Parenting Motion during COVID-19 This blog is co-written by our former articling student, Janet Son. Co-parenting with your ex-partner is difficult even in normal times. Now trying to co-parent amidst a pandemic with ever-changing safety guidelines is even more challenging. The courts are closed until at least July 6, 2020, and only hearing urgent matters. Despite this, there has been a flood of COVID-19 era decisions on parenting arrangements. Ribeiro v. Wright by Justice Pazaratz set out the principles on how parents should be approaching access orders during COVID-19: The presumption is that all existing parenting orders should comply with subject to modifications that may be necessary to ensure that COVID-19 precautions are adhered to (para 7) A blanket policy that children should never leave their primary residence to visit their other parent is inconsistent with a comprehensive analysis of the best interests of the child (para 10) A custodial or access parent may need to forgo their parenting time temporarily if they are subject to specific personal restrictions such as self-isolation for 14 days due to travel, sickness or exposure to illness (para 12) A parent’s personal risk factors such as employment as an essential worker may require controls and precautions before direct contact with their child can take place (para 13) Finally, reckless behaviour such as failing to comply with social distancing measures may raise concerns about parental judgment in which parent-child contact may be reconsidered (para 14) If you are considering bringing an emergency parenting motion or you have been served with one, Justice Pazaratz outlined a number of requirements (para 21): The parent bringing the motion must bring specific evidence or examples of behaviour or plans by the other parent that are inconsistent with COVID-19 safety protocols The parent responding must provide specific and absolute reassurances that COVID-19 safety measures are being followed Both parents must bring specific and realistic time-sharing proposals that are child-centred Judges will take judicial notice that many public facilities are closed and so parents should take this opportunity to spend time with their children at home Here are some cases where judges applied or distinguished Ribeiro v. Wright: WHEN YOUR CHILD IS IMMUNOCOMPROMISED In Trudeau v. Auger, an emergency motion was brought by the mother to temporarily suspend in-person access with the father as the child was immunocompromised. In this case, Justice Kwolek ordered the father to take the following precautions: disinfect frequently touched items such as doorknobs, maintain social distancing, stay at home except for necessary trips to the grocery store or pharmacy, allow no one else to enter the home, do not take the child to any public locations, wear a mask and stand at least 2 meters away when together (para 52). Justice Kwolek also outlined circumstances that may justify a suspension of access in the future: Evidence of a parent’s disregard for the safety of their child Specific medical evidence regarding the child that access would place them at significant risk of COVID-19 Specific evidence that shows increased risk due to travelling between households in your particular community If a parent becomes ill, access will be temporarily suspended If a more restrictive order is made by the government to restrict movement even further, existing parenting schedules should be re-visited (para 59) WHEN SOMEONE IN YOUR HOUSEHOLD IS A FRONTLINE WORKER In Blaskavitch v. Smith, the mother brought an emergency motion as the father’s partner is a personal support worker at a long-term care facility (para 18). The father set out in great detail the protocols in place at the facility his partner works at and the precautions they are taking within their home. They also confirmed that there have been no cases of COVID-19 at the facility (para 43). As a result, Justice Trousdale found that the father and his partner were taking all reasonable precautions and there was no evidence that his partner was not complying with work protocols. There was no cause for a temporary change in the residence of the child during COVID-19 (para 44). Though the motion was dismissed on a without prejudice basis, Justice Trousdale expected each parent to inform the other immediately if any person in their household tests positive or presents symptoms of COVID-19 so that temporary changes to access can be made. Key Takeaway: Avoid the temptation to use this situation as an opportunity to change the parenting status quo, unless you can provide concrete evidence specific to your child that they will be in danger from the existing parenting order. There are only narrow circumstances in which the court will vary an order in order to maintain as much consistency and normalcy for your children during this very distressing time. If you have been served with a motion, rally as much evidence to show that you are taking all precautions at your workplace and at home to protect your children from COVID-19. To conclude, court resources are currently scarce and the judiciary is urging parents to cooperate as much as possible and avoid litigation except only for the most serious cases. If you have more questions about bringing or defending against an emergency parenting motion during COVID-19 contact Andreina Minicozzi at 289-638-3179 or andreina.minicozzi@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.” By Fauzan SiddiquiBlog, COVID-19, Family LawJune 1, 2020September 29, 2020
COVID-19 – Family Law Property Scam Even during this pandemic, there are some separated or separating spouses who are trying to take advantage of the situation, and the operation of Part 1 of Ontario’s Family Law Act, to try to get ALL of their ex’s wealth. It is important for married spouses to understand how that can happen, so they can plan accordingly. Up until COVID19 hit, when it came to property matters, separated spouses were more concerned about what happens when assets increase significantly after separation and when those separated spouses share in that increase and when they don’t. Unfortunately, due to the COVID19, the economy is facing the opposite situation, with people’s RRSPs and other investment savings plummeting in value. Even with the Courts almost completely closed, many spouses are making legal claims to try to get ALL of what their ex has left. There may be some situations where that is the proper result, but in most it is not. This type of action is not unique to COVID19. It is also a concern whenever the economy takes a downturn. It was also a problem in 2008 and 2009. To understand how his scam works, it is necessary to understand how property division works after a marriage occurs. There is no property division for common law couples under Ontario’s Family Law Act. To briefly summarize and simplify how property division works (follow the links for a complete explanation), with some exceptions, married couples share the increase in their net worths from their date of marriage to the day they separate. That makes those two dates very important. With the possible exception of matrimonial homes, married spouses start counting how much net worth they have, and really how much what they have has increased in value from the date of marriage. For the purposes of property division under Ontario’s Family Law Act, they stop considering their increase in net worth on the date they separate. But, in these trouble times, that same law means that they stop counting any decrease in network on the date of separation too. The value of what a spouse owns before the date of marriage and after the date of separation don’t matter. All that matters is what the married spouses had on those two dates. That fact is what makes this scam work. Ontario Family Law recognizes that spouses do not have to physically separate, meaning one spouse walking out of the home, for the spouse to be separated. The law recognizes that spouses can live “separate and apart under the same roof.” The law says that when the spouses move apart is not necessarily the important date for property division, but rather the important date is when they stop living together as husband and wife, even if they continue to reside under the same roof. That gives at least one spouse a big incentive to say the marriage was over, and the parties stopped living as husband and wife BEFORE the COVID19 crisis hit. It gives an incentive to say the marriage ended before the value of their spouse’s assets plummeted – and to say that they were just sharing the same space as co-tenants, not as spouses anymore. To illustrate the advantage this gives, consider a situation where one spouse had $500,000 in investments, but no other significant assets on January 1, 2020 and the other spouse had very little. By the end of March, those investments have fallen to $250,000 in value and the stress of being isolated together in the home means that one spouse walks out. But, that spouse with no assets does not want to share in $250,000. That spouse wants to share in $500,000. So, that spouse says they separated – stopped living like spouses – on January 1 when the investments were worth $500,000. Under Ontario Ontario’s property equalization scheme, that means that spouse would be owed an equalization payment of half the assets on January 1 – $250,000 – or ALL of what his or her ex has left. That is an extreme case. Most won’t have results that bad. But, it illustrates the point. Of course, the opposite it also true. If the spouses had a big fight on New Years, never got along afterward, and stopped living like spouses then, the spouse with the investments has a BIG INCENTIVE to try to reconcile the relationship, even briefly, while the investment value has cratered. Because, if the spouses rekindle their relationship, even for a couple of days or nights, the date of separation becomes that last date, and they share in the LOW value for the assets. That could be a big help, particularly if everyone’s investments rebound after the crisis. The law is not so unreasonable as to allow one spouse to pick the date of separation that benefits him or her the most. If the parties cannot agree, it is a judge or family arbitrator that decides. With so much money potentially at stake, there is clear incentive for one spouse to lie or stretch the truth. Consequently, judges try to look at the facts objectively and ask themselves: “When would an objective person, who knew the couple, say the relationship was over?” In determining that, it is not just when the couple stopped having sex, or even when one spouse started having an affair (some relationships recover from that). The judge (or arbitrator) looks at factors such as: when the spouses stopped eating together, when they stopped going out or vacationing together, when they stopped showing signs of affection for each other, when they stopped referring to each other as spouses, when they took the wedding rings off, when they separated their finances (opened separate accounts or stopped paying each other’s bills), many other possible factors depending on the family’s situation. Determining when spouses separated in these difficult circumstances can be open to argument. Also, the separation date can be very dependent on the specific facts of the individual case. Since there can be a lot of money at stake, it is important for spouses in the midst of a separation to get in touch with a lawyer who can provide advice based on the specifics of the individual situation. The specific circumstances can make a big difference on what a separating spouse should do to protect himself or herself. It can be important even for someone to speak to a lawyer before he or she walks out to determine when might be the best time to do that, or even if that matters anymore. In these situations, the lawyer’s advice can save a spouse thousands, even hundreds of thousands, of dollars – especially when it helps avoid a scam. For more information about family law related questions and advice, please contact John Schuman at john.schuman@devrylaw.ca or 416-446-5080. “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.” By Fauzan SiddiquiBlog, COVID-19, Family LawMay 5, 2020September 30, 2020
Property Division During COVID-19 In my previous post, I touched on the issue of changing support obligations in light of the pandemic. More and more, separating spouses are wondering how property issues will be dealt with in light of the pandemic, particularly as assets are dropping in value after separation. In Ontario, we follow an “equalization” regime under the Family Law Act. Broadly put, this means that spouses share in the increase of their net worth for the duration of their marriage. Generally, the spouse who had the greater increase of net worth during the marriage would pay the other spouse one half of the difference. For example, if Husband’s net worth grew by $100,000 during the marriage, while Wife’s net worth grew by $50,000, then Husband would owe Wife and equalization payment of $25,000 (which is half the difference between $100,000 and $50,000). Equalization is explained more fully here. For now, it is important to understand that two dates become very important: the date of marriage, and the date of separation. Both spouses’ net worth as of these dates become crystallized, which determines the figures used to calculate the equalization payment owing. Generally, fluctuations in the value of assets following separation are not considered, which could lead to unfair results. Some examples: Husband is an employee at a publicly-traded company but receives company shares as part of his compensation package. At the date of separation (pre-pandemic), he solely-owned shares worth $1,000,000. Following the pandemic, the value of the shares dropped by 10%, which may continue to plummet. This provides for a $100,000 reduction of the husband’s net worth post-separation. However, following a true “equalization” would provide that any decrease in value post-separation is not shared between the parties. As such, Husband would be accountable for the entirety of his equalization payment, while still absorbing the decrease of his net worth post-separation. Wife solely owns a retail store in downtown Toronto. At the date of separation (pre-pandemic), it was worth $500,000. In light of the pandemic, she is unable to pay her overhead costs and must close her doors. As a result, she is stuck with a business that she will struggle to sell. Again, a true equalization regime would have no regard for any post-separation fluctuations in value, leaving Wife accountable for an equalization payment that would otherwise be owed to her Husband. In either scenario above, the spouse owning the assets could look to section 5(6) of Ontario’s Family Law Act to request an “unequal division of net family properties” to avoid absorbing the entirety of the loss. Even then, the test under section 5(6) is stringent. The moving party would need to demonstrate that following a true equalization regime would “shock the conscience of the court”. For more information about property division or any other family law related issue, please contact the author of this blog post, Mason Morningstar at mason.morningstar@devrylaw.caor 416-446-3336. “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.” By Fauzan SiddiquiBlog, COVID-19, Family LawMay 5, 2020September 30, 2020
Changing Child Support or Spousal Support Payments During COVID-19 Child and spousal support obligations take effect either pursuant to a court order or a separation agreement (to be sure, many people make informal arrangements amongst themselves, though this is rarely advisable). Separation agreements typically contain review clauses which outline the process for changing a payor’s child or spousal support obligations, along with what kind of change in circumstances will trigger the review. Parties who have signed a separation agreement addressing support should begin there when seeking to vary a support obligation. In Ontario, support orders are made either pursuant to the Divorce Act or the Family Law Act, depending on the court in which the proceedings took place. Sections 17(4) and 17(4.1) the Divorce Act and sections 37(2) and 37(2.1) of the Family Law Act outline the tests for varying child support and spousal support slightly differently. In practice, however, we are generally concerned with whether a “material change in circumstances” has taken place since the order was made. A “material change” is interpreted as a change, which if known at the time of the order, would have resulted in a different order being made. The loss of employment (or even a reduction of income) beyond the payor’s control would generally justify a variation of child and/or spousal support in ordinary times. To date, there is no reason to believe that the loss of employment or income resulting from the pandemic would be any different. That said, support payors should be careful in navigating a reduction of support. At all times, they should make good faith efforts to be transparent and continue paying what is affordable to them. For example, if a support payor underwent a 40% loss of income as a result of COVID-19, a good faith effort would be to negotiate a roughly 40% reduction to their current support obligations. Practically speaking, however, this may not necessarily be feasible. The support payor’s remaining monthly expenses (such as rent/mortgage, utilities, car insurance, debt payments, etc.) have not automatically dropped by 40% as well. It will be important for the support payor to alleviate their losses as much as possible, for example, by applying for emergency relief from the government where appropriate, deferring debt payments and insurance premiums where possible and looking for other employment in the meantime. When the courts resume regular function, many of these support payors will need to begin court proceedings to formally vary their support obligations or any arrears that accrue over the ensuing months. A payor’s good (or bad) faith efforts to continue paying support will likely be a factor considered by the court when addressing the issue. For more information about child support or any other family law related issue, please contact the author of this blog post, Mason Morningstar at mason.morningstar@devrylaw.caor 416-446-3336. “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.” By Fauzan SiddiquiBlog, COVID-19, Family LawMay 4, 2020September 30, 2020
What to Expect With Your Family Law Matter After COVID-19 Andreina Minicozzi and Devry Smith Frank LLP are committed to following the guidelines and recommendations outlined by the Public Health Agency of Canada to ensure the safety and wellbeing of employees, colleagues, clients, friends, and families. During these unprecedented times, we understand that your family law matter may be in flux. It is important to recognize what the landscape of family law may look like in Ontario after COVID-19. This post looks at such a future. With limited relief currently available to families through the courts, these unprecedented times may change the future of family law forever. Alternative dispute resolution, which continues to be refined, has surged, and on the other hand, the courts are now forced to offer a more streamlined and efficient process. Overall, this may bode well for the family law system holistically. Alternative Dispute Resolution Alternative dispute resolution such as mediation, arbitration and collaborative family law have become staples in the legal landscape and while the courts have scaled back on the issues which they can resolve, these alternative dispute options continue strongly and have the capability to adapt to an online platform much quicker. An online mediation could allow a couple to resolve their family law matter over a shared video conference platform such as Zoom. Arbitration allows parties to hire a private arbitrator to make a decision on their dispute. Arbitration can use video conferencing for oral arguments and cross-examination, and documents can be exchanged electronically in moments. Litigation can be lengthy and expensive, but with the health of alternative dispute resolution maintaining its position in the legal landscape amid such a crisis, you can expect many more family law matters to engage with the justice system through mediation, arbitration, and collaborative family law given their streamlined service and ability to adapt to changing landscapes. A Streamlined Court System Canadian courts are now also rapidly updating their procedure to accommodate litigants through remote access and virtual hearings. Even such processes like notarizing documents and signing affidavits have been adapted to accommodate the need to changes in this current landscape. We have also seen an advanced email filing system for many Ontario courts The longer social distancing is required, the more the courts will need to adapt, increasing the options for remote or virtual hearings and streamlining further processes. This is also stated with the understanding that there will be a predictable influx of new and ongoing family law matters that need to be addressed once the restrictions relating to COVID-19 are lifted. Even long after Canada has recovered from COVID-19, you can expect such streamlined processes in family law to remain as the new norm or at least a viable option for litigants; a welcomed culmination of a time where the entire world was forced to adapt for the better. What may result is a more modernized court process through technology and expediency, and one predicated on efficiency. Conclusion The future of family law may just mean a move away from the courts to other dispute resolution platforms, and a nuanced family court process that is more streamlined and efficient. Nevertheless, while understanding the future of family law is intricate, developing and dynamic, for many, the future is now. If you believe your family law matter requires urgent attention by the courts, please do not hesitate to contact Andreina Minicozzi at Devry Smith Frank LLP to have your rights assessed and protected. By Fauzan SiddiquiBlog, COVID-19, Family LawApril 29, 2020September 30, 2020
How is COVID-19 affecting child and spousal support in Ontario? The coronavirus pandemic has brought far-reaching economic shock waves across the country. Over one million jobs have been lost in Canada due to COVID-19 in the month of March alone. As this crisis continues and more jobs and businesses evaporate, support payors and support recipients are going to feel the financial strain. If you are a support payor pursuant to a court order, child and spousal support must still be paid despite the current state of affairs. Each region has its own notices and practice directions regarding support issues. Since April 6, 2020, the Notice to the Profession for the Central East Region which includes Whitby, states that the following matters are eligible for a hearing in writing or virtually before a judge: 14B motions requesting consent Orders on issues such as support – a Support Deduction Information Sheet (“SDIC”) is required to assist in completion of a Support Deduction Order (“SDO”). If one or more than one party is represented by counsel, a draft Order is to be submitted with the SDO. Consent Motions to Change (Form 15D), if a party is represented by legal counsel then the SDIC and SDO are to be filed. Case Conferences upon request by 14B, if granted, are limited to 30 minutes unless permitted otherwise by the triage judge and only 1 or 2 pressing issues can be conferenced which includes financial issues that do not meet the stringent urgency test. Before proceeding with motions to the Court, first determine if you are eligible for any Federal government relief programs such as the CERB or Wage Subsidy Program. Eligibility may allow you to at least continue partial payments. Though, keep in mind that under Section 11 of the COVID-19 Emergency Response Act, CERB payments cannot be garnished by the Family Responsibility Office (“FRO”) at this time. The next step would be to explain your financial situation to the person you are paying support to. Cooperate as much as possible in an attempt to agree to a temporary reduction of support and/or to pay out any arrears with a modified payment plan if and when you are able to regain employment. Once an agreement is made, request a consent motion for an Order to reflect the temporary agreement regarding support arrangements during this time. The Family Responsibility Office (“FRO”) has confirmed that they will not be sending any new notices of driver’s licence suspensions and are in the process of cancelling notices that were previously sent in order to reduce the number of urgent refraining motions. This means that motions to vary or stop support payments will unlikely be considered “urgent” enough to be heard by the court at this time unless the payor is in “dire financial circumstances”. In Theis v. Theis, 2020 ONSC 2001, the support payor mother brought an urgent motion requesting that her share of the sale proceeds of the matrimonial home be released. She was a small business owner who was forced to shut down due to provincial restrictions and her revenue had dropped to zero. Unfortunately, she failed to provide evidence of “dire financial circumstances” warranting an urgent motion including her: her previous income before the restrictions; her total income now from all sources; her personal and business expenses; the extent of her resources more generally; an updated sworn financial statement; and the results of any applications for federal relief funding and timelines. As a result, due to the dearth of evidence in her motion materials, no finding of dire financial circumstances could be found and her motion was dismissed. The key take-away is try to negotiate a temporary settlement and bring a motion on consent or as a last resort bring an urgent motion if you have enough evidence to demonstrate dire financial circumstances. Contact family lawyer Andreina Minicozzi at 289-638-3179 or andreina.minicozzi@devrylaw.ca if you have more questions about support obligations during the coronavirus/COVID-19pandemic. By Fauzan SiddiquiBlog, COVID-19, Family LawApril 27, 2020September 30, 2020
Bringing Motions During COVID-19 in Family Law Andreina Minicozzi and Devry Smith Frank LLP are committed to following the guidelines and recommendations outlined by the Public Health Agency of Canada to ensure the safety and wellbeing of employees, colleagues, clients, friends, and families. During these unprecedented times we understand that your family law matter may be in limbo. It is important to understand which family law motions may still be brought before the Superior Courts. This post looks at this issue within the Toronto, Central East and Central West regions. Toronto In Toronto, the Superior Courts will only hear motions on specific grounds. The first ground is that the motion must be urgent. This includes: Requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home); Urgent issues that must be determined relating to the well-being of a child including essential medical decisions, issues relating to the wrongful removal or retention of a child, or failure to comply with existing court orders and parenting plans; Issues regarding the financial stability of the family unit, including for example support or the need for a non-depletion order; Urgent child protection motions involving the Children’s Aid Society. It is important to note that the actual hearing of these motions is likely to take place either virtually or by way of teleconference. Parties can also consider bringing motions by way of 14B. A 14B motion is a motion made in writing. The courts will continue to hear 14B motions that are made on consent of all the parties. Central East – Barrie, Bracebridge, Cobourg, Lindsay, Newmarket, Oshawa, Peterborough Much like Toronto, the Central East Region is only hearing motions on specified grounds. This includes: Urgent motions that meet the threshold for urgency, and ex-parte motions i.e. on matters relating to the safety or well-being of a child. 14B motions in writing, requesting consent Orders on issues such as support, changes to temporary support, parenting issues (primary residence, “access” time), disbursement of funds held in trust, appointment of an OCL, Child Protection matters, and other consent matters. 14B motions requesting a Case Conference if the issues are pressing. Pressing issues that may require a Case Conference include issues of parenting, COVID-19 concerns, financial issues, or Child Protection matters that do not necessarily meet the stringent test of urgency in addition to urgent matters of a similar nature. Consent Motions to Change when both parties are seeking to change a portion or all of a previous order or agreement in place. Again, note that the actual hearing of these motions is likely to take place either virtually or by way of teleconference. Central West – Brampton, Milton, Orangeville, Guelph, Owen-Sound, Walkerton The Central West Region’s hearing of motions during these unprecedented times mimic the hearings offered by Toronto, including again: Requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home); Urgent issues that must be determined relating to the well-being of a child including essential medical decisions, issues relating to the wrongful removal or retention of a child, or failure to comply with existing court orders and parenting plans; Issues regarding the financial stability of the family unit, including for example support or the need for a non-depletion order; Urgent child protection motions involving the Children’s Aid Society. The Superior Courts in Central West will also hear consent motions in writing, made by way of a 14B motion. However, unlike Toronto and Central East, Central West is allowing parties to submit motions if the parties consent that the entire motion can be decided in writing only. This means no oral hearing is provided, and the presiding judge will make their decision predominantly based on the parties’ written material only. Conclusion If you believe your family law matter requires urgent attention by the courts, please do not hesitate to contact Andreina Minicozzi at Devry Smith Frank LLP (289-638-3179 or andreina.minicozzi@devrylaw.ca) to have your rights assessed and protected. Court procedures for filing materials and scheduling a motion have also changed and we have stayed up to date on these new procedures so that your rights continue to be protected during these unprecedented times. By Fauzan SiddiquiBlog, COVID-19, Family LawApril 23, 2020September 30, 2020
How to Deal With Domestic Violence and Child Abuse During COVID-19 This blog is co-written by our former articling student, Janet Son. This pandemic has brought the surge of another life or death danger: women and children who are forced to self-isolate with their abusive partners. According to the Ontario Association of Interval and Transition Houses (OAITH), a network of 70 shelters across Ontario, they have seen an alarming increase in the number of calls from women who are facing domestic violence; and there are many more who are now unable to safely contact help. The Ontario Superior Court is still hearing urgent family law matters pertaining to the safety of a child or parent such as a obtaining a restraining order, restrictions on contact between parties or exclusive possession of the home. For lawyers, now is the time to get educated on how to spot the red flags of family violence amongst your client base and take appropriate steps. Luke’s Place provides online CPD accredited training called “Effective Lawyering with Clients Leaving Abusive Relationships” designed for Ontario family lawyers. For those who are at risk or have experienced violence in the home, their priority should be to get a safety plan. The Assaulted Women’s Helpline Crisis Line can be reached: Toll-free at 1-866-863-0511 Toll-free TTY: 1-866-863-7868 Text #SAFE (#7233): On Rogers, Fido, Bell, or Telus Mobile Shelter Safe provides a comprehensive list of resources to connect with a local women’s shelter across the country. Family Court and Beyond provides comprehensive information on leaving an abusive spouse including safety planning tips. The Superior Court has begun to release COVID-19 family decisions. In Reitzel v. Reitzel, 2020 ONSC 1977, a father’s motion for parenting time with his children was deemed non-urgent. It had been six months since the parties’ separation and he had only exercised limited parenting time, taking the children to sporting events. The mother opposed the motion alleging that the father was verbally and physically abusive towards her and all their children when they were together and that he continues to harass, stalk, and intimidate them. In the aforementioned case, The Family and Children’s Services of Waterloo Region (“FACS”) interviewed all the children after the separation and provided a letter in support of the mother for the motion, stating that it does not support any unsupervised parenting time with the father. Though Justice Madsen found the letter by FACS to be preliminary untested evidence, it will be considered along with further evidence for a future motion to determine parenting arrangements. Victims of domestic violence should shore up as much evidence as possible to demonstrate the danger they are experiencing. Involvement of Children’s Aid Societies can assist in obtaining this evidence and provide further resources for safety-planning. If you have more questions about domestic violence in your family law situation, contact Andreina Minicozzi at 289-638-3179 or andreina.minicozzi@devrylaw.ca. By Fauzan SiddiquiBlog, COVID-19, Family LawApril 20, 2020September 30, 2020