How Can I Obtain Custody of the Family Pet in My Divorce? – My Soon to be ex-husband is Keeping My Pet Away From Me Under Ontario’s current Family Law Legislation, pets, of any sort, are not treated like children they are, for all purposes of law “property”, like furniture, cars or bank accounts. So, judges do not decide things on the basis of the “best interests of the pet”, the way judges decide parenting issues on the basis of the best interest of the child. Since the “best interests” do not factor into the decision about who gets the pet, the issue about who gets to have the pet is determined by who owns the pet or who can prove to have “title” to the pet. To answer whether you can get your pet back, you have to understand how property division works in separation and divorce. It is important to note that being married in Ontario does not give spouses an automatic right to ownership of each other’s possessions. That said, the pet in question, belongs to whomever paid for it. However, if there happens to be pedigree papers, the owner listed on that document or other paperwork that proves ownership is believed to be the legal owner. Ownership remains the same, regardless of whether spouses are married or divorced. Under Part I of the Family Law Act, married spouses share in the value of each other’s property but do not own each other’s possessions in any way – unless they bought something in joint names. Nonetheless, if you own the pet, your spouse does not and your spouse will not turn the pet over, you may have to start court proceedings. Rule 44 of the Rules of Civil Procedure give the Court the power to order the Sheriff’s office go to wherever your ex is residing and recover items that you have proven to the court belong to you. The procedure is quite complex and you will most definitely need a lawyer to assist both with getting the Order and with arranging the necessary security for damages that the Court Rule requires. If you and your spouse own the pet jointly, then the situation becomes much more complex. You must put forth a Family Court Application under section 10 of the Family Law Act for a determination that you are the rightful sole owner of the pet based on the “principals of Equity” rather than title (because you have contributed more to the value of the pet than your spouse). Alternatively, you can claim, under that section, that you should be the owner who has possession of the pet because you will “preserve the asset” better. However, where there is joint ownership, and one owner does not want to buy out the other, Judges do not try to determine the value of assets, or force one party to buy out the others’ interest. The judge is likely to order that the pet be sold on the open market and the proceeds of sale divided between the owners (again Ontario Law treats pets and “property” and not as children). The judge may order that either party can put in offers/bids to buy the pet, with it being sold at the highest price. Alternatively, the judge may order that neither party can try to buy the pet if that would be best for all concerned. If you and your ex can agree to it, you could go to Family Arbitration and instruct your arbitrator to decide the issue of where the pet should live based on the pets best interest. However, section 2.2(1) of the Arbitration Act, 1991 technically requires that assets acquired during a marriage, be divided according to the Family Law Act and not the parties’ instructions. Therefore, your best options might be to try to work something out through negotiation, mediation or collaborative practice, where the needs of the pet can come first. For assistance with the division of assets during a divorce or separation contact experienced and certified specialist in family law, John P. Schuman of Devry Smith Frank LLP. He is the partner managing the Family Law Group at DSF, a full-service law firm located near Eglinton and the Don Valley Parkway in Toronto. Contact him directly at 416-446-5080 or email john.schuman@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, Family LawMarch 27, 2019June 16, 2020
The Family Rules are Changing on July 1, 2018 and Lawyers and Litigants Should Take Note Come July 1, 2018, the Family Law Rules (the rules that govern the process of family law court cases in Ontario) will undergo some substantial changes. Changes have been made to the rules that govern the timelines for serving and filing court materials, the rules for costs and the rules for motions and conferences. The changes are not insignificant and family law litigants and lawyers alike will have to take note. Timelines for Motion Materials One of the major areas of change is in relation to the time in which parties have to serve and file materials for motions. If a party wishes to have the court grant a temporary order, they have to (in most cases), bring a motion. To do this, they have to serve and file a notice of motion outlining the orders they want to make, and the evidence supporting those orders. Under the “old” rules, a motion and the supporting evidence had to be served no later than four days before the hearing date. A party responding to the motion had up until two days before the hearing date to provide their evidence in response to the motion. The party bringing the motion would have a right to reply, but this would also have to be submitted two days before the hearing date. This led to numerous motions being adjourned when responding materials were filed at the last moment, necessitating an adjournment to allow for reply evidence. Finally, two days before the hearing, the parties had to confirm that the motion was proceeding by filing a confirmation. The new rules have extended the timelines and (one hopes) eliminated the need for adjournments to file reply evidence. Under the new rules, motions must be served six days before the hearing, and responses must be filed by four days before the motion. If a party wishes to file a reply, they will have to do so three days before the hearing date. Confirmations will now have to be filed three days before the motion. Hopefully, these amendments will result in fewer motions being brought at the last possible moment and fewer motions being adjourned as a result of it. Delay works a real injustice in family law, and regularizing the process for booking motions and filing the material for them will hopefully work against this. Timelines for Conferences The new rules have also changed the timelines for filing conference briefs. Under the old rules, the party requesting the conference (or if no one requested it, the Applicant) had to serve and file their brief seven days before the conference. The responding party had to serve and file their brief four days before. The new rules now require that the initial brief be filed six days before the conference. Litigants will now have to keep Rule 3(2) in mind when filing briefs. Under Rule 3(2), if a rule specifies a period of less than seven days, you don’t count weekends or other days when the court is closed. So six business days may turn into eight calendar days depending on the timing of the conference. Costs It is unlikely that the changes to the rules for service and filing of motions will lead to any substantive changes in the law – people often do not litigate about how many days there are in the week (thankfully). However, the last major changes to the Rules will likely lead to some litigation over their interpretation and application. After all, the changes are to the cost rules. The current costs regime is enumerated in Rule 24. Its language and interpretation have been the subject of countless court decisions. The old Rule 24(11) listed the factors that judges had to consider when awarding costs. The new Rule 24(12) does the same but imports the language of ‘reasonableness’ and ‘proportionality’ into an assessment of each of the factors. While these concepts always have loomed large in the assessment of costs, it will be interesting to see if the slight linguistic changes will have an impact on how and when costs are awarded. There is a legal maxim that the legislature does not speak in vain, and changes in the language of the law should bring about changes in its application. Otherwise, the changes will have had no effect and the legislature will have ‘spoken in vain.’ We will just have to wait and see how these new rules are applied. One of the last major changes is when the Court can award costs. The ‘old’ rules required a judge to address costs at the end of each step in a case, be it motion, conference or otherwise. In Islam v Rahman, the Court of Appeal decided that if a judge did not address costs at the end of a step, a party could not seek costs for that step later in the case. The new Rule 24(11) has done away with this and allows the court to award costs related to a step at any point in the case. The Final Word It is only in half-jest that I say that one would need a law degree to understand the Family Law Rules. While they are meant to be understood by average people, many people find them confusing and tough to navigate. The new amendments to the Rules will hopefully prevent motions being brought at the last moment to ‘ambush’ other parties, and motions from being adjourned to allow for reply evidence. However, the new rules also make clear that motions will not proceed if the rules are not followed exactly. It is important to ensure that all the rules are followed, or cases will continue to be delayed. That is why it is always recommended that you have an experienced family law lawyer assist with your case. For more information on the Family Law Rules and how Devry Smith Frank LLP’s Family lawyers can assist with your family law matter, please contact one of our Family Law Team. By Fauzan SiddiquiBlog, Family LawJune 7, 2018June 16, 2020
Canada to Get Its First Major Update to the Divorce Act in Twenty Years On May 22, 2018, the federal government introduced Bill C-78, An Act to Amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act. While most may be caught by its catchy name, Bill C-78 is something that family law practitioners and litigants alike should take note of – they are the first major reforms to the Divorce Act in almost two decades. If spouses divorce in Canada, their divorce and any issues of child support, spousal support, custody, and access are governed by the Divorce Act. If spouses are not married, these issues are governed by the provincial family law statute(s) in force in their province of residence. In all cases, issues of property are resolved according to the provincial laws. While the proposed changes to the Divorce Act and the related statutes are wide-ranging, arguably the most important changes will be related to the custody and access (or ‘parenting’) provisions of the Act. Currently, the Act speaks in terms of ‘custody’ and ‘access’ which, while familiar to most, are considered out of touch with modern views of separated parenting. Scholars, experts and practitioners alike believe that the terms ‘custody’ and ‘access’ promote a mindset of winners and losers in family law – that custody is something to be prized, and access is for secondary parents. In response to this, the new legislation will replace the terms with more child-focussed language, such as ‘parenting orders’ and ‘parenting time.’ Many judges and lawyers already employ such neutral terms, but having it enshrined in the law signals a definite shift in the thinking of the legal community. While some may view this as window dressing, others who have seen the financial and emotional expense of fighting for ‘custody’ can appreciate the real difference a subtle linguistic change can make. The proposed legislation will also introduce criteria for determining whether a proposed parenting order is in a child’s best interest. Most would be amazed to learn that the Divorce Act contains no criteria to determine whether any specific order related to a child (whether they can move with mom to Cabo, whether they should spend Chanukkah with their father, etc). Up until now, judges have had to make reference to provincial statutes governing custody and access, and judicial decisions, for guidance as to how to make these decisions. It is likely that the proposed legislation will simply adopt the concepts already found in most provincial statutes. The final major change in relation to custody and access is introducing criteria for mobility cases, those where one party asks to move away with the child after separation. As it stands currently, there are no statutory criteria for determining these cases – federal or provincial. In 1993, the Supreme Court of Canada released its decision in Gordon v Goertz, which is the governing decision on mobility cases. The Court held that each case must be decided on its facts, but enumerated a list of factors to consider. The intervening 24 years has seen a number of judicial decisions add to the framework that the court must apply. Mobility cases are notoriously fact-specific – as it stands, it is fair to say that the dominant factor is the presiding judge’s view of whether they think the particular move will benefit the child or not. It will be interesting to see how the federal government formulates the ‘guidance’ it provides to judges, and whether it will depart significantly from how the law has developed. If you have a question as to how the new changes to the Divorce Act could affect you, or you have any questions in relation to custody, access or mobility contact a member of our Family Law Team “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 LawMay 23, 2018June 16, 2020
Am I on the Hook to Pay Child Support Retroactively? One of DSF’s Toronto Family Lawyers was recently asked the following question: Can child support payments be retroactive? My former spouse never claimed child support and on top of that refused to take support payments from me for years. Recently, my former spouse has gotten into some financial trouble and filed an application for me to start paying child support. Will I have to pay child support retroactively from the date of our separation or will it start from the date of the application? Their Answer: The short answer is it depends. Family Courts can order retroactive child support in certain circumstances. In 2006, the Supreme Court of Canada ruled on the issue of retroactive child support in D.B.S. v S.R.G. The Court looked at when retroactive child support can be ordered and in what circumstances. The Court provided a list of factors to take into account when child support can or should be ordered. Child support orders are made in accordance with the Child Support Guidelines. There is a table amount that is set out for various income levels and the amount of support is based on the income of the payor spouse and the number of children. The Guideline was introduced as a way to make child support as simple, objective and predictable as possible. In deciding whether or not retroactive child support should be ordered, the Court looked at four factors: Is there a reasonable excuse for the delay in making the application; What is the conduct of the payor parent? Whether or not the conduct was blameworthy; What are the circumstances of the child; and Will there be hardship caused on the payor parent by the retroactive payment? In deciding the quantum of the award, there are four possible dates that the retroactive child support can be awarded from. Retroactive payments can be awarded from the date: The application is made; Of formal notice to the payor parent; Of effective notice to the payor parent; or When the amount should have been increased. The Court imposed a three-year limit as a rough guideline for how far back child support can be ordered. To answer the question above, it is likely that a Court would order retroactive child support to the date of ‘effective notice’. Effective notice, as the general rule, is the date that there is an indication by the recipient parent that child support should be paid. It is not the date that legal action is taken, such as filing the application, but is the date that the topic has been brought up with the payor parent. Because there has been no blameworthy conduct on the part of the payor parent, there would be no reason to move away from the date of effective notice. In this circumstance, the parent would have to pay retroactive support payments from the date the former spouse brought up that he or she now needed the support payments. The requirement to pay child support is a free-standing obligation that can fluctuate over time with the income and circumstances of the spouses. You can read more on the topic here, on John Schuman’s blog. John Schuman is a Certified Specialist in family law and is the partner managing the Family Law Group at Devry Smith Frank LLP. If you have any questions about child support or family law generally, please visit our website and contact one of our Toronto family lawyers today. By Fauzan SiddiquiBlog, Family LawAugust 29, 2017June 18, 2020