I Have Children From a Previous Relationship. I’ve Since Remarried and Have Children with My Current Wife. How is Child Support Calculated for My Eldest children? In recent years, it has become more commonplace to see “complex” families where one (or more parents) have children with several other parents or is a step-parent to children in other families. Therefore, how child support is calculated when one parent has children with several other parents is an increasingly common question. The solution is different for parents who are the biological (or adoptive) parent to all the children or the biological parent for the child (or children) and a step-parent to other children. Generally, child support is not payable when you are living with, and sharing the household expenses for the other parent and the children. This is a situation that would most likely be the case if you are still married and not separated. Biological and Adoptive Parents First, biological (and adoptive) parents always paytable support under the Child Support Guidelines. There are some possible adjustments where: The payer’s income is over $150,000.00 (pursuant to section 4 of the Child Support Guidelines) Where paying support causes undue hardship – see section 10but note that proving undue hardship in court is difficult There can also be adjustments for shared or split custody but for tax reasons it is better for both parents to pay full support in that situation. When the child support payer has all the children with one other parent, calculating child support is significantly easier. The parents can obtain a version of the Child Support Tables and locate the table that pertains to their current situation. For instance, if there are three children, with just two parents, it is a simple matter of looking at the table for three children. Things work differently where the support payer has children with several different parents. The Child Support Guidelines work on the premise that children should not be disadvantaged by their parents’ choices, and there are some expenses that can be shared between kids in the same family. That being said, where there is multiple support receiving parents, the support payer pays the full table amount for the number of children with each parent. Having children with several different parents can mean having to pay a substantial amount of child support. However, there can be an adjustment for undue hardship in extreme circumstances, but again, this can be difficult to demonstrate and prove. It is preferable for the parents to make financial sacrifices, not the children. Child support where there are multiple parents or more complicated parenting arrangements can be difficult to determine. There are a lot of factors that need to be taken into account, and there may be additional ways that the law can help you. The best way to protect yourself, your children and your financial security, is to find out how the law applies specifically to your situation and what steps you should take. Speaking to a highly experienced lawyer, John Schuman of Devry Smith Frank will help alleviate some of the stress and complications that are often associated with family law matters. Call today at 416-446-5080 or 416-446-5847. Alternatively, 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 LawJanuary 31, 2019June 15, 2020
Spousal Support and Early Retirement – Is it a Material Change in Circumstances and/or Can Spousal Support End in the Event of Early Retirement? Spousal support, sometimes referred to as maintenance or alimony, are funds that are paid to one spouse to another upon separation or divorce. There are various reasons as to why one spouse may be required to pay support to the other, usually to assist financially for a specified amount of time or to compensate a spouse who is seen to have sacrificed their ability to earn during the marriage. However, what happens when there are material changes in the payor’s initial circumstances which led to the decision to pay spousal support to begin with, or when the possibility of an early retirement is imminent? One could reasonably make the assumption that their obligation to pay spousal support is subject to termination, as in any circumstance, it is likely that each party would have already been in receipt of their share of the assets accumulated during the relationship. Unfortunately, this notion is often incorrect. – Clarifying whether the conditions for variation exist relies solely on a ‘material’ change. According to the Divorce Art, if the payor expresses an interest to amend a court order for spousal support, the court must be satisfied that a ‘change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order’. The former spouse who is requesting to obtain the variation is responsible for being able to demonstrate that the changes in circumstances are material. In other words, the onus is on the spouse who is pursuing the change, to present evidence proving the change should be granted. In the recent case, Hanniman v Hanniman, 2017 ONSC 7536 (CanLII) an Ontario judge set precedence for what constituted a material change in circumstances, whereby the termination of spousal support was sought and thought to be justified on the basis that one party entered early retirement. Ultimately, the motion to terminate spousal support was dismissed, suggesting that opting to retire early and being in receipt of less income, did not necessarily provide grounds for termination. The motive for early retirement is a factor that was not disregarded, instead, it was looked upon as a voluntary approach that did not align with a mandatory retirement policy.- For this reason, material change could not be concluded. Moreover, it must also be taken into account that ‘the changed circumstances, had they existed at the time of the making of the spousal support order… would have resulted in a different order.’ A stipulation in which did not appear in this circumstance. Nonetheless, it is always advisable for each party to consider devising a separation agreement. A domestic contract which essentially deals with any significant changes to your situation and can include specifics such as the duration in which the spousal support will be paid. Contacting an experienced lawyer for help with issues pertaining to family law matters, will provide you with the information, support and ease needed to navigate through the complexities one may face during a divorce or separation. At Devry Smith Frank LLP, our mission is to help you understand your entitlements, providing each client with the advantage of having a reliable source of legal advice. Contact Andreina Minicozzi, of Devry Smith Frank LLP, for experienced family law assistance, at andreina.minicozzi@devrylaw.ca or 289-638-3179 “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 LawJanuary 8, 2019June 15, 2020
I’m Getting a Divorce, What Are My Rights to the Family Business? When divorce is contemplated by either one or both spouses, often it is time to start thinking about the division of assets. This could include the matrimonial home, financial accounts, earnings accumulated during the marriage and as one might expect, retirement accounts also. That said and unsurprisingly so, countless married couples who in addition, become business partners, do not anticipate separation and as a result, make no formal arrangements concerning their business should the unexpected happen. Unfortunately, the lack of forward-thinking from the onset can become incredibly problematic, and in some cases subjecting the business to stagnation, as the breakdown in communication and lack of mutual agreement occurs between the two parties. So, what happens when you finally make the decision to divorce? – People often assume that divorce typically means all assets are divided equally, 50/50. Obviously, there are exceptions to this notion – for instance, if a property is in joint names and owned by each party as joint tenants, then indisputably each is entitled to half of the property in question. However, a jointly owned business is somewhat more complex, as generally, the resolution is rarely as straightforward as the previous example. There are a number of scenarios to which can be presented to married business partners: – Complete dissolution of the business and splitting the proceeds – Continue to jointly manage the business – An elected spouse keeps the sole proprietorship of the business and purchases the remaining shares. As you can imagine, this can be a tough decision to not only decide upon but one that both parties should endeavour to ultimately agree on together. Less challenging if the separation is amicable, which is why at Devry Smith Frank LLP, we understand the need for a comforting experience and the importance of promoting a smooth transition. Furthermore, the complexities don’t often halt there. – Outside the obligations to yourself, there are obligations to your employees, clients, suppliers, creditors and anyone else who may be considered a business shareholder. It is essential to seek guidance from experienced family and corporate legal professionals, who have extensive skills in helping to decipher both the family and business aspect, thus attaining a fair settlement for both parties. Your family lawyer will also be of assistance in improving your knowledge on your responsibilities and entitlements throughout the process. If you are thinking about dissolving a marriage and a business partnership simultaneously and you are concerned about what will happen to your family business, talk to one of our family lawyers today in our Toronto office location. For more information on how we can assist, please contact our office online or directly on (416) 449-1400 and schedule a consultation today. “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 LawDecember 20, 2018June 15, 2020
Common Law Couples: Exclusive Possession of The Home More than ever, unmarried (or “common law”) couples are living in conjugal relationships that are indistinguishable from marriage. Many of these couples will be surprised to learn that, in Ontario, they do not enjoy the same rights and obligations as their married counterparts upon separation. In a previous post, I wrote about the difference between married and unmarried couples as it relates to the division of sale proceeds from a jointly owned home. Another issue confronting common law couples is the lack of statutory protections regarding the “matrimonial home” afforded to married spouses. Generally, property owners are entitled to do what they wish with their property, and correspondingly prevent others from interfering with this right. However, special rules with respect to the matrimonial home provide exceptions to this general rule. Matrimonial Home – Exclusive Possession Ontario’s Family Law Act defines a matrimonial home as every property in which a person has an interest that was ordinarily occupied by the spouses at the time of separation. In practice, this generally refers to what many people consider the family home. Regardless of ownership, both married spouses are entitled to possession of the home, preventing one spouse from evicting the other, or changing the locks, by virtue of being the sole owner. The sole owner is further prevented from unilaterally selling or encumbering the home without the other spouse’s consent, or a court order to this effect. Pursuant to section 24(1) of the Act, the non-title holding spouse can even apply to a court to force the title-holding spouse out of the home for a period of time, such that he or she has the exclusive right to occupy the home. This is referred to as “exclusive possession” of the matrimonial home. Common Law Couples – Matrimonial Home? Ontario law does not recognize matrimonial homes for common law couples. As such, the sole owner is free to do as she wishes with her property, and may evict the other spouse or sell the home as she pleases. A non-title spouse who refuses to leave may be liable for trespassing. In limited circumstances, however, some remedies akin to exclusive possession orders are available to common law couples. In Morrison v Barbosa CarswellOnt 12197 (Ont. S.C.J.), the parties cohabited in a property solely owned by the ex-boyfriend for six years. Following separation, the ex-girlfriend remained in the home for almost two years while the ex-boyfriend moved out of the province. During this time, the ex-girlfriend continued to make both financial and personal contributions to the property, and directly to the ex-boyfriend. The ex-boyfriend brought a motion to evict the ex-girlfriend from the home so he could list it for sale, while the ex-girlfriend brought a motion to remain in the home. Although the parties were unmarried, the judge found there was case law to support the ex-girlfriend’s request for exclusive possession of the home. Namely, the ex-girlfriend claimed that she held a proprietary interest in the home by virtue of a “constructive trust” or a “joint family venture”. Further, the ex-girlfriend suffered from several medical issues that would be exacerbated by her eviction from the home. The motions judge ultimately decided that these issues required a full trial, and awarded the ex-girlfriend exclusive possession of the home pending the final resolution of the case. While there may be a general shift towards expanding rights for common law couples, special caution should be had with the foregoing. The facts of the case are highly specific, and there is no appellate authority confirming the status of this area of the law. Unmarried couples would be wise to address these issues in a cohabitation agreement – seeking legal advice is always recommended to curtail future disputes. Contact Devry Smith Frank LLP to speak with an experienced family lawyer online or directly at (416) 449-1400. “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 LawDecember 11, 2018July 5, 2023
I Want a Divorce – What Are The Steps In Getting a Divorce in Ontario? Until married couples obtain a divorce, the law still considers them to be married, even if they are living separate and apart. This may have implications on spouses’ estates rights, entitlements to benefits and life insurance policies, and the ability to make end-of-life decisions for incapable spouses. Before seeking a divorce, it is important to obtain advice on how these rights may be affected. Interestingly, while many family law issues can be resolved outside of court, a divorce requires standardized court forms and a judge’s signature. You cannot avoid the court process if you want a divorce. Steps to Obtain a Divorce Eligibility in Ontario Before applying for a divorce, it is important to ensure that spouses meet the following three eligibility criteria: The spouses were legally married in Canada or in any other country; The spouses intend to separate permanently from one another, or they have already separated with no reasonable prospect of reconciliation; and At least one spouse has lived in Ontario for at least 12 months preceding his or her application for divorce. Breakdown of the Marriage There is only one basis on which a judge can grant a divorce – a “breakdown of the marriage”. This can be proven in one of three ways: (1) adultery; (2) cruelty; or (3) separation for a period of at least one year. By far the most common route couples choose to prove a breakdown of the marriage is the one year separation period. Couples who choose adultery or cruelty have the added (and difficult) burden of proving this in court, a task that is often expensive and lengthier than the one year waiting period. Additionally, spouses may begin their application for divorce at any time post-separation, but the order can only be granted after the expiration of the one year time period. Divorce Application and Corollary Issues The spouse who is seeking divorce becomes the Applicant in the proceedings and will prepare an Application. The particular form to be used will depend on whether any “corollary issues” arise from the spouses’ separation, such as child support, spousal support, and property division. If children are involved, judges are prevented from granting a divorce order unless they are satisfied that reasonable arrangements have been made for the support of the children. Judges may also refuse to grant a divorce unless there is satisfactory evidence that the remaining issues are resolved – often this is shown by way of a valid separation agreement. If corollary issues are in play, the Applicant will begin with a Form 08 – Application (General). If no corollary issues are present, the Applicant will use a Form 08A – Application (Divorce) to start the proceedings. Issue, Serve, and File Once the Application is complete, it must be taken to the appropriate courthouse where it gets stamped by a court clerk and assigned a court file number. This is referred to as “issuing” the Application. Following this, a copy of the Application must be personally served on the opposing spouse, who becomes the “Respondent” in the proceedings. Service must be done by somebody other than the Applicant, who is at least 18 years old. The person who served the Respondent must then complete an Affidavit of Service, to be sworn in front of a commissioner of oaths, then filed at the courthouse – spouses often hire process servers to complete these steps. Affidavit for Divorce Once the Respondent has been served, he or she has 30 days to deliver a response. If this 30 days expires without a response, the Applicant will complete an Affidavit for Divorce, along with three draft Divorce Orders. The Affidavit must stipulate all the details of the marriage, and prove that the corollary issues have been resolved (or that they are not issues at all – when parties have no property or children, Toronto (Any)for example). If there is insufficient evidence to this effect, the judge may refuse to grant the divorce order. Assuming the judge is satisfied with the evidence, he or she will sign the three draft orders provided, then mail one to each of the spouses, and keep one for the court file. 30-day Waiting Period The day the judge signs the divorce order triggers a final 30-day waiting period, after which the divorce takes effect. In the eyes of the law, the spouses’ marriage is then dissolved. Navigating the court process can be daunting, even when both spouses are on the same page and share the same goal to obtain a divorce. Hiring a lawyer from the outset provides the added assurance that documents are completed properly, and the procedure is followed in a timely manner. For more information on how we can assist, please contact our office online or directly on (416) 449-1400 and schedule a consultation today. “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 LawNovember 23, 2018June 16, 2020
Common Law Couples: What Happens to Our Jointly Owned Home After Separation? The definition of “common law” couples differs depending on which legal rights are in question, and it is possible to be considered “common law” in one context, but not another. For family law purposes, we look to Ontario’s Family Law Act. Perhaps surprisingly, Ontario’s family law regime does not recognize the term “common law relationship”. While it is a vernacular that has developed over the years in both colloquial language and case law, what we are ultimately concerned with is the legal definition of “spouse”. More confusingly, the definition of “spouse” changes throughout the Act. With respect to the property regime, “spouse” only refers to married couples, meaning that unmarried couples are not entitled to a division of property acquired throughout their relationship. With respect to spousal support, unmarried couples are considered “spouses” if they have either: Cohabited for at least three years; or Have a child together and have cohabited in a relationship of some permanence. Additionally, Canada’s Income Tax Act defines common law spouses as having lived together in a conjugal relationship for at least one year. On the other hand, there is no such thing as common law partners for the purposes of estates rights – you will not be entitled to your common law partner’s estate if your partner dies without a will, even if you are considered “common law” in another context. Jointly Owned Home In Kamermans v. Gabor, a recent case from Woodstock, Ontario, Justice Heeney dealt with a common scenario for unmarried couples: the parties jointly purchased a “fixer-upper” home, with the male partner placing a deposit on the purchase price in the neighborhood of $70,000.00. The parties then jointly obtained a mortgage to finance the balance. Title of the home was placed in the parties’ names as “joint tenants”, which affords either spouse the right of survivorship in the event of the other’s death, as opposed to registering title as “tenants in common”, which guarantees the spouses a percentage interest in the home. Both parties spent roughly equal time and expenses improving and renovating the property, which increased its value. The parties sold the home at a profit post-separation, with the majority of the proceeds of sale remaining in a trust account, until the parties determined how to split the proceeds. The issue: the female partner instantly acquired equity to the home. If the parties split the proceeds equally, the male partner loses his significant deposit on the purchase price, resulting in a windfall in the female partner’s favor. Given that the parties were not married, they could not look to the Family Law Act for an equal division of property. Instead, the male partner was forced to rely on equitable principles that have developed in case law over the years, particularly a principle called a “constructive trust”. Ultimately, the judge in this case found that the female partner was unjustly enriched by the male partner’s deposit, and there was no legal reason for her to enjoy this enrichment. The male partner recovered his deposit as a result. Constructive trust claims are notoriously complex and difficult to prove. The lesson we can glean from this case: this issue could have been avoided with a valid cohabitation agreement. If you need advice regarding common law relationships or you are concerned about a related family law issue, please contact one of our experienced family law lawyers online or directly at (416) 449-1400. “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 LawNovember 8, 2018July 5, 2023
Canadian Courts and Mahr Agreements – Can My Mahr Agreement be enforced? We have discussed the topic of divorce in a previous blog post, however at Devry Smith Frank LLP, we are aware that typically, traditions vary in different cultures. In particular, the South Asian community. Family separation and divorce within the South Asian community is often seen as a taboo subject and notions of uncertainty as to whether a Mahr Agreement can actually be enforced, frequently arises. – Either promptly, at the time of the marriage or on a deferred basis, which allows for the wife to gain financial security in the event of unforeseen circumstances, such as the death of her husband or a separation. Occasionally, it is misperceived as a ‘bride price’ or ‘dowry’ which does not seem fitting, considering the agreement is not a prerequisite for marriage. Typically, it is a gift given to the bride from her husband when the stipulations of the contract of marriage is made. Over the years, there has been inconsistency in the rulings of Mahr agreements in Canadian courts. Nonetheless, some courts have deemed the contract to be one of a domestic nature and enforced it under the provisions of family law. As seen in Mohammadi v. Safari , a case in which Farzana acted as Counsel on behalf of the Applicant and whereby the ambiguity depicted within the Maher Agreement, led to what one would believe to be a partial enforcement. – Despite the Respondent’s opposing claim that the Mahr Agreement in which he initially agreed to, should be considered invalid. That said, the standards to which could make a Mahr agreement enforceable is very much akin to those of any other domestic contract. To be valid in Ontario, a Mahr must: Be in writing, signed by the involved parties and witnessed. Financial disclosure must be provided by the parties to one another Must be signed without duress Whilst the enforceability still depends on the specific facts of each case, it is imperative that you seek independent legal guidance. Talk to one of our South Asian lawyers today in our Toronto office location. For more information on how we can assist, please contact our office online or directly on (416) 449-1400 “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 LawOctober 20, 2018July 5, 2023
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
Changing Weekend Visitation Family Lawyer John Schuman was asked the following question: My ex wants to keep my daughter this weekend and it is my weekend. I live in Ontario and this is a court ordered agreement. What can I do about this? John’s answer: A carefully drafted separation agreement, Family Court Order, or parenting plan will anticipate most things that will come up in a child’s life. But, it is not possible to anticipate everything. Things always change for children and unanticipated things creep up. Judges understand that, even when a judge has spent the time determining what custody order is in a child’s best interest. So, where parents can agree that a change to what is set out in a court order, either for once or permanently, is in a child’s best interest, then judges understand – unless a children’s aid society or the judge’s order says that no changes are allowed. In most cases, judges (and children’s aid societies) like it when parents can agree to changes to schedules, and other aspects of their children’s lives, in ways that benefit their children. With judges preferring parents being flexible to meet their children’s best interests, the purpose of Parenting Orders, parenting plans or separation agreements is to really to set out what will happen when the parents, unfortunately, cannot agree. When parents cannot agree whether something is in a child’s best interest, the “fall back” is what is in the Court Order, parenting plan or separation agreement. Put another way, if the parents do not agree to deviate from the parenting plan, one of them cannot do so without getting a judge to change the Court Order or agreement. When a parent asks a judge to change a Parenting Order or agreement, the judge will decide what to do based on what is in the child’s best interest. It is possible that decision is not what one, or both, parents want. Also, a parent who refused unreasonably refused to cooperate with the other parent, or denied to make changes without a good reason, may get in trouble from the judge. That parent may have to pay the other parent’s legal fees. Or, can lose custody of the child if the judge thinks the parent was trying to harm the child’s relationship with the other parent. It is always best to try to be reasonable and cooperate when it comes to parenting after separation – even when the other parent is being unreasonable. The process for going back to court can be quite complicated, and involve several court appearances. Before going to court, it is important for a parent to gather the evidence that what they want is in the child’s best interest. All that will not be worth it for one simple change. And, it is unlikely you will get the change made or an upcoming weekend. (Note, it is best to get travel consents arranged months in advance to avoid court delays.) Parents who find that they have a lot of difficulty cooperating with the other parent and the Court Order or Parenting Plan does not resolve the issues, may want to consider using a parenting coordinator. That professional can quickly either assist with, or make, parenting decisions, such as whether a child should attend a special event on an upcoming weekend. It is important to keep a child insulated from, or losing out because of, fights between parents. You can get a lot more information about Ontario Family Law issues, including a further explanation of child custody and parenting legal issues by downloading this $9.99 e-book for Kindle, Kobo, or iPad/iPhone/Mac or ordering the paperback version. But, to keep out of trouble, it is always best to speak with a good family law lawyer. “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 LawFebruary 16, 2018June 16, 2020