Do You Need An Emergency Temporary Custody Order? Question: How do I go about getting an emergency temporary custody order for my son? Answer: Provided by our Toronto Family Lawyer John Schuman The first question you have to ask is whether you need an emergency temporary custody order. Judges do not like making custody orders, especially on incomplete evidence and on rushed basis unless the order is necessary to protect the health and welfare of the child. If the order is not necessary to do that, then the judge will want you to have a case conference first. Of course, that is if you really need to be in court. There are alternatives to court that are often better able to address children’s issues than court, unless there are issues of abuse, mental health, substance abuse or a very difficult parent. You can learn more about the alternatives to court in this video: Do I have To Go To Court For A Divorce. If you do have to go to court, there a large number of things you must do, and correctly. Your best chance to get this right, and avoid having a judge refuse your request, is to get a lawyer to help you. (For more reasons why you should hire a lawyer, see this webpage Why Do You Need A Family Law Lawyer. If you cannot hire a lawyer, you should get a copy of this $20 book on the basics of Family Law, which describes the Family Court Process and custody access issue, to help you: Devry Basics Ontario Family Edition. However, if that is not possible, here is the information about how to get the Order: First you should understand the legal meaning of the term “custody.” It may be different than you think. Read this webpage for more info: What Does The Term Custody Of A Child Mean? You must file a Form 8 Application General that sets out all the orders you want the court to make and the facts that give the court the legal authority to make those orders. There are certain facts that are important when judges decide any parenting issue, including custody, and many facts that judges do not care about. It is important to put the right facts in your Application, and in your affidavits, so read this webpage: How Do Judges Decide Which Parent Gets Custody of a Child?. They both explain how judges decide who gets custody. Since you are claiming custody, you must also complete, and swear or affirm before a commissioner of oaths (these are in law offices and at the court), a Form 35.1 Affidavit which sets out several facts that judges want to know regarding parenting. If you are asking for any form of support you must also complete a Form 13 Financial statement (again this has to be sworn or affirmed). If you are asking for support and making property claims, you have to fill out a form 13.1 Financial Statement. (Note that only the Superior Court of Justice has jurisdiction to deal with property claims.) Your financial statement must attach 3 years of Notices of Assessment from the Canada Revenue Agency. If you do not have them, you must get them through the CRA’s website: My Account. You have to take all of the above documents to the court to have them “issued.” The court will not allow you to issue the documents if there are errors or they are incomplete. You must create a continuing record volume for the court. For information about doing that, see this link: Formal Requirements. At the time that you are issuing your Application, you should ask the court for when you can have a case conference. You should book the first date. The court will give you a Conference Notice, that you must add to all the other documents. After issuing the documents, you must have someone, other than you, serve the documents on your spouse and anyone else who can claim to have been an active parent of the child. Service usually means identifying the person being served and a handing them the documents to be served. The person must complete a affidavit of service, attesting that he or she served the documents properly (another commissioned document). Then you must file the documents with the court. After all of that, you must bring a motion for temporary custody. Unless there is a compelling reason why the other parent(s) should not be served with your motion material (because they would do something bad to the child before the court had an opportunity to hear the motion) you must give them at least 4 business days notice. To get a court date, you have to go to the family court service counter and ask what dates the court has available to hear your motion. You must first complete a Form 14 Notice of Motion that sets out the precise order you are asking the court to make. You must also write, and swear, a Form 14A affidavit that sets out your version of the facts. (Refer to the podcast and website listed above to know what facts are important.) As you have to swear or affirm that the document is true, it is very important that the facts be accurate. It is also important that the affidavit is written in a way that is clear and compelling to a judge. To hear about what judges consider good parenting, listen to this podcast: The Voice Of A Child. The affidavit must also make it clear why you cannot wait to until the court can have a case conference to discuss the issues on your motion. One thing you must include is when the first case conference date is available from the court and also The affidavit is your “evidence” on the motion. You do not get to tell the judge any additional facts on the hearing of the motion. The motion is not a trial, so no one testifies in court. All the facts that the judge needs must be in the affidavits. If you want other people to give their evidence on your motion, they have to swear their own affidavits. You must serve the Notice of Motion and all of the other affidavits on the other parties that you have named in your Application. Unless you are trying to bring your motion without notice to the other parties, you must serve them at least 4 days before. The other parties in your court proceeding have the right to file their own affidavit in response to yours. After they do that, you have the right to file an affidavit that responds to the new facts or issues in the other party’s affidavits. However, you cannot raise any new issues in your “reply affidavit.” Two days before the set motion date, before 2:00 p.m., you must file a form 14C to tell the court and the judge whether your motion is going ahead as scheduled or not. Most courts let you file your 14C by faxing it to a special fax number, but the 14C is the ONLY document you can file that way. Then you show up on the day of the motion and you explain to the judge why the law says you should get your emergency temporary custody order (and why you could not wait for the case conference). The judge usually will have had the opportunity to read all the affidavits, so you will only want to mention the most important facts and tell the judge where to read about them in all the materials that were filed (using specific tab and page numbers if possible). Keep in mind that motions are supposed to be argued in less than an hour total. So, you should plan on speaking to the judge for no more than 20 minutes at first. That includes the time that the judge asks you questions. The other party will get about the same amount of time. Then you will get to speak to the judge about any new facts or issues that the other party spoke about that you did not mention in your first twenty minutes. However, this is not a time to repeat your points. The judge’s time is precious and there are a likely other cases waiting. So you do not want to be repetitive, or do anything else to upset the judge. The judge will then either decide your case on the spot, or “reserve” which means the judge will decide the case later and send a written decision to you. The decision is different from a formal court order. If you need a formal court order, that is another process… which can the topic of another post. Or you read about it in the book that I mentioned above. If the judge decides against you, or decides the motion could have waited until after a case conference, then the judge will likely order you to pay the legal fees and other costs of the other party. This is where not using a lawyer can really cost you. If you do not get your own lawyer, you can end up paying the cost of your ex-spouse’s lawyer if you lose. All the court forms are found here: Ontario Court Forms. Also, I did not quote the precise rules that set out all of the above, but you can find the Family Law Rules here English Elaws. Again, the process for bringing an urgent motion is a complicated one, and you have to tell the judge the right things. So, you should consult a good family lawyer and get a copy of this $20 book Devry Basics Ontario Family Edition on family law that covers all of this in more detail. . For further information or assistance with a legal matter regarding Family Law & Emergency Temporary Custody Orders, contact one of the Toronto Family Law Lawyers listed below of the page. By Fauzan SiddiquiBlog, Family LawMay 16, 2013July 5, 2023
Very distressed child asked for advice in upcoming child custody case My friend’s child asked for advice on a upcoming child custody case. His parents are in family court and have trial in 2 months on child custody and access. He has a children’s lawyer, but afraid to tell her what he wants as he doesn’t want this information to be shared with parents – he is very afraid of their reaction. The lawyer does not keep things in private as promised. The child is in a much distress and wants to talk to a judge, but OCL is against it. The child is turning 13 in few months. I don’t know how to help him, I am very concerned about his state of mind. He is vey stressed and turns it against himself by having a very low view of his worth and his life worth. His OCL unfortunately does not see it and is convinced the child is OK. What would you advise to this child and is there any way I can help? If I talk to his parents he will loose trust in me as well. This is an upsetting situation. However, the perspective on hearing from children is changing in Ontario Family Law. Many judges recognize children have a right to be heard in matters that affect them, provided it is the child who wants to be heard and not a parent trying to get the child to take sides. Technically, a child does not have to be represented by the Office of the Children’s Lawyer. A child can retain a private lawyer to assist him or her. Judges views this with some scepticism unless it is clear the child was not “put up to it” by a parent. This means the child has to contact the lawyer himself, see the lawyer without a parent present and negotiate the retainer for that lawyer. That lawyer can than advice the court and the OCL that he or she is representing the child and the OCL is no longer doing so. The court (and the OCL) will likely want to explore the situation to ensure this was not a parent influencing the child. At some point, the child may have to say that he lost confidence in the OCL lawyer. That may take some fortitude, but so will putting a position before the court on his parent’s divorce. However, a child who does all of that to ensure he is heard by the court, will convince most judges to at least listen. It sounds like you are being “neutral” in this situation, so it would likely be OK for you to assist the child in finding a lawyer. Also, it is important to remember that a child expressing a point of view is NOT determinative of any issue. Even if a judge listens, the child will only be a witness, not the decision-maker. After listening, the judge may make a decision that is different from what the child wanted. However, often just knowing that the judge has heard his point of view is enough to get a child “on board” for any decision. If you want to know the technicalities of the law in relation to courts listening to children, you can see if your local reference library or law library (often in the courthouse) has a copy of Wilson on Children and the Law. There is a long chapter on this issue. The book itself is several hundred dollars to purchase. So, you will need to find a good library to get a copy. There is more about children in the family court process, how to navigate family court, and many other family law issues in this $20 easy-to-understand book on Family Law: Devry Basics Ontario Family Edition. For further information or assistance in regards to child custody, child access or family law, please contact Toronto family lawyer John Schuman. By Fauzan SiddiquiBlog, Family LawApril 8, 2013December 3, 2020
Tax Considerations in Wrongful Dismissal Settlements When employment litigation resolves in a wrongful dismissal settlement, an important issue for the employer and the employee is the tax considerations and how the settlement funds will be allocated. Employees should ensure that the settlement funds are allocated in order to minimize their tax liability. Employers may also be able to settle cases for less if they cooperate with employees in the allocation of the settlement funds. There are many different ways in which the payments can be allocated, such as wages, retiring allowance, general damages and legal fees. Any money allocated as wages will be subject to withholdings. The employer is required to withhold Canada Pension Plan (CPP) and Employment Insurance (EI) contributions, as well as income tax from settlement funds allocated as wages. The Canada Revenue Agency (CRA) defines “retiring allowance” as “an amount paid to officers or employees when or after they retire from an office or employment in recognition of long service or for the loss of office or employment.” Significantly, the employee does not have to be retiring in the colloquial sense in order to be entitled to a retirement allowance. In other words, an employee who is terminated from one job and starts a new one shortly thereafter could still be entitled to a retiring allowance. The employer is required to withhold money on retiring allowance payments at the following lump sum rates: 10% for amounts up to and including $5,000.00; 20% for amounts between $5,000.00 and $15,000.00; and 30% for amounts of $15,000.00 and over. No withholdings are required for CPP, EI and income on retiring allowance payments. General damages are monies awarded to a litigant as compensation for pain and suffering for bullying/harassment, breaches of human rights legislation and other torts. If settlement funds are allocated as general damages, and the payment relates to the loss of employment, it would be subject to withholdings at the lump sum rates. In other words, if the employee would not have been entitled to the payment but for the loss of employment, the money is subject to withholdings. On the other hand, if a payment of general damages is made as compensation for events that are unrelated to the loss of employment, the money would be non-taxable. Settlement funds allocated as legal fees are non-taxable. No withholdings are required and the employee will not pay tax on these amounts. This is dealt with in the Income Tax Act by way of an income inclusion and an offsetting deduction. Please talk to one of our employment lawyers to review your tax considerations and legal options before accepting a wrongful dismissal settlement. By Fauzan SiddiquiBlog, Employment Law, TaxApril 3, 2013November 24, 2020
Tips for completing your Family Law 13.1 Financial Statement Many people faced with having to complete a 13.1 Financial Statement find it a daunting task. Here are a few tips to simplify the process. The idea of completing an accurate monthly budget has some people collecting bank statements and credit card statements for the past year, and averaging out their expenses over that period, and then breaking them down to a monthly figure. Although it is important to be realistic in your budget, this exercise is not necessary. It is ok to “ballpark” how much you spend on groceries in any given month. Although it used to be that spousal support would be loosely based on the “Budget” section of your Financial Statement, now that the SSAGs have become widely accepted in Court, the “Budget” has become less important. It is still important to ensure that your budget makes sense in a global way. Your budget should not be wildly off base, or your spouse will ask to see all the bank statements and receipts. If your budget indicates that you are running a deficit every month, but you do not have any corresponding increase in your debt, the accuracy of your Financial Statement may be called into question. With respect to the property section of the 13.1 Financial Statement, it is designed to capture three specific dates: the date of marriage, valuation date (which is the date you separated) and today. Any property that you owned between your date of marriage and valuation date, but did not own on either of those pertinent dates, is not entered on your Financial Statement. The exception to this rule is if it is property that you have disposed of within the past two years. Part 8 deals exclusively with property that has been disposed of during the past two years. Perhaps the easiest way to understand how to complete the property section of your Financial Statement is this: If you took a photograph of your financial situation on the date you were married, the date you separated, and the day you are completing your Financial Statement, these are the figures that you put into the respective columns. Finally, the Financial Statement that each party completes addresses only the property that they have an ownership interest in. For example, if your matrimonial home is in your spouse’s name, you do not put it on your Financial Statement because you do not “own” it. Similarly, if you lease your vehicle, it does not get entered on your Financial Statement because you do not “own” it. When you are completing your Financial Statement, you should keep all of the documents that you relied on to prepare the Financial Statement, so that you can give them to your lawyer together with your draft Financial Statement. This step will save you a lot of time and hassle in the future, as your lawyer will most certainly ask for these documents. If you are involved in a Court proceeding, it is important for you to know that a Court will not accept your Financial Statement if you have not attached your last three years’ Notices of Assessment (the form you receive from the CRA that has your income tax refund cheque attached to it). You can order copies of these documents by calling 1-800-959-8281. You should always do this as soon as you are asked to fill out a Financial Statement because the process of receiving them takes about six weeks. Financial Statements are important no matter what path you have chosen to resolve your matrimonial matters – litigation, collaborative practice, negotiation of a Separation Agreement, or mediation/arbitration. The most common reason that resolution of matrimonial matters is set aside by a Court at a later date is for lack of financial disclosure. The thinking is this: if you did not know what you were giving up because you did not have all of the information you needed, how could you have made an informed decision about whether or not it was the right choice for you? This is true when entering into a Marriage Contract as well. Think of it this way – if you are releasing your future right to receive spousal support, but you do not know how much your spouse earns, you may have made a different decision if you had all of the information available about your spouse’s income and income potential. By Fauzan SiddiquiBlog, Family LawNovember 21, 2012November 24, 2020