"How do I get a divorce?" - Ontario - BlogBite (19)

As you can imagine, we hear this question A LOT!

In Canada, only a Judge can grant a divorce. For this reason, the Court must be notified if either party wants a divorce, even if all of the other issues are settled, by way of Separation Agreement, for example.

How does the Court "get notified"? One of the parties needs to commence a court proceeding, by Application (a joint Application is also an option). In the Application, the spouse commencing the court case would ask for a divorce BUT may also ask for other relief, like child support, custody and other claims.

When to ask for a divorce and whether to ask the Court for just a divorce or a divorce with other claims is a very important, strategic decision for which you likely need legal advice.

In lay terms, a "divorce" is what happens when two married spouses separate but in strict legal terms, a divorce is only the order of the court which ends a marriage and as a result of which the spouses are no longer spouses and are divorced.

It is important to realize that the granting of a divorce DOES NOT deal with any of the other issues in the case between separated spouses.

SO: if your case involves issues like custody, access, child support, spousal support and property division, to mention just a few, then your court case must name all those IN ADDITION to a divorce and ask the Court to deal with those issues as well.

These are complex, technical issues Get legal advice. We offer unbundled services to give you advice on limited, specific issues as well. 

Separation and the Social Media (1)

The New York Times recently reported on the results of a study of teenagers and their texting habits/reactions to being interrupted. Unfortunately, the results are not that surprising, are they? You will find the article here: New York Times article about texting teenagers

Your teenagers are affected by today's widespread use of electronic media and so are you pre-teens, other family members, friends, co-workers, employers, service-providers and leaders.

Every aspect of North American lives is affected by social media today.  Separation and divorce are no different.

Many a separation has been precipitated by someone's discovery of a Facebook post, a text, a tweet or some other form of electronic communication suggesting that that their partner/spouse is part of an extra-marital relationship.

It is surprising to learn how many adults continue to believe their social media posts are private or at least limited to the audience they think they are picking for them. In many instances, that is not the case.

Several years ago we were involved in a case in which a separation agreement allowed for a reduction of spousal support payments in the event the other spouse cohabited with another person. In resisting our client's request for a reduction in support payments, the former wife insisted she was not cohabiting and not even dating. Her entirely unprotected Facebook page suggested otherwise. She marked herself as being "In a Relationship" and she posted numerous photos of her new home with her new spouse. The Court took this evidence into account in reducing the amount of spousal support payable by our client.

Beware of careless posting. Social media communications ARE vulnerable to becoming evidence before the Court.

A lovely, warm October day in Ontario.....

"I am going to a Case Conference - what can I expect?"

A Case Conference is one type of hearing in a series of hearings expected to take place in a family law case in Ontario under the Case Management system of court practice.

Case Management in family courts in Ontario is designed to keep cases "on the rails" and moving to their resolution in a prompt, organized and cost-effective way.

A Case Conference is generally the first hearing in this system - it is expected to take place soon after the court case is commenced. It is a meeting of a judge with the parties and their lawyers (if they are represented) to discuss the most pressing of issues, to organize the exchange of documents and disclosure and to schedule any necessary contested hearings and questioning. All discussions at a Case Conference take place on a "without prejudice" basis, meaning, they cannot be repeated at a contested hearing. The judge presiding over a Case Conference has the power to make some court orders. All court orders are made on a "with prejudice" basis, meaning that they affect the parties and the overall court case.

Your Case Conference may take place in open court or in the judge's office (chambers). Practice varies depending on the judge and the jurisdiction. Dress comfortably but appropriately. The judge may (but is not likely to) ask you questions.


UPDATE - January, 2018

We are pleased to let you know that our Etsy shop is now OPEN!

Visit it here: SELFREP SUPPORT

In the shop, we make available to you Manuals (E-books) on various topics, to assist you in representing yourself before Ontario's family law Courts.

So far, we have Manuals on preparing an effective:

• Financial Statement (both long-form and short-form); and
• Affidavit.

MORE MANUALS TO COME! 

Robert Roth - Landscape

Why Court is not always the solution.......

This is the age of media. An average person's view of the world is greatly affected by the media. This includes the public's perception of court.

TV teaches that legal battles are waged in the court room, with fist-pounding lawyers and finger-wagging judges. Reality is not what you see on TV. What you also do not see is the tremendous cost involved in conducting a court case, from start to finish.

A family court proceeding in Ontario can be an expensive, drawn-out process, for a variety of complex reasons over some of which you will have control and many of which you won't. Going to court is not the panaceum you may think it is. There are cases where the involvement of a judge is necessary to address differences in the legal positions of the parties. Sometimes, the intervention of a judge is required to address an emergency situation like the abduction of a child or non-payment of support.

Overall, settlement is always the preferable solution, for all concerned, assuming the parties both understand their legal rights, are making the bargain freely and without duress, understand the basis of the bargain through solid disclosure and have had an opportunity to get legal advice. Settlement polarizes the parties less than does a court case, where there is usually a clear winner and a clear loser. In a settlement, the parties are the authors of the terms of their agreement. This is the opposite of what happens in Court (other than in the context of a case which settles through Case Management) ~ a stranger to your family (the judge) makes decisions which may very well affect you and your children for the rest of your lives.

For the reasons above (and many other reasons which a family law lawyer can provide you) choose settlement if you can.

Some mediators/arbitrators in Ontario:

Stephen Grant and Gerry Sadvari
Herschel Fogelman - Basman Smith
Jennifer Shuber - Basman Smith
Melanie Kraft - Epstein Cole
Ken Maynard

Court Costs in Family Court - Ontario

Ultimately, it is the Judge in Family Court who decides when to order costs. There are, however, some general principles to keep in mind. The winner of a contested step in a court case (for example, a motion or a trial) is more likely to get costs. Settlement proposals (whether in the form prescribed by the Family Law Rules or by letter, for example) will be taken into account by the Judge. If you made a settlement proposal which was as good as or better than what the Judge ordered (we say "your offer beat the order") you are more likely to get court costs. If the other party behaved "unreasonably" in the case, you are more likely to get court costs but be careful, the definition of "unreasonably" may not be an average person's definition of that word.  For more information about costs, when and why they are ordered, seek advice from a lawyer.....

I am very pleased to have Ms. Eun-Kyung Lee join me, as an associate lawyer. Eun-Kyung is a graduate of Osgoode Hall Law School and was called to the Bar of Ontario in 2011. She is very bright, personable and prompt. She is already making a great contribution to our team! 

Inheritances and Ontario family law

Equalization of net family property is one area of family law where inheritances come into play.

Generally speaking, an inheritance received by a party during the course of the marriage is "excluded" property under Ontario's Family Law Act and such an inheritance is not "shareable" with the other spouse.

There are a number of issues to keep in mind in connection with the above, general statement. The list below is not exhaustive but, rather, it is included to show you how complex this area of family law can be and that you would be well-advised to seek legal advice about it:

1. it matters what the recipient did with the inheritance - for example, if the money was spent on travel for the family, it cannot be claimed as an exclusion..

2. picking up on point 1. - can the whole or any portion of the inheritance be traced to an asset existing at the date of separation/valuation? - if only a portion can be traced, only that portion can be excluded..

3. is the inheritance mingled with other assets and can it be "spliced out"?

4. was the inheritance used, in any way, for the matrimonial home? - this is an important issue and you should seek advice on it...

5. income from an inheritance is treated in a unique way in Ontario  - find out how by contacting a lawyer....

Once again, the receipt of an inheritance during the marriage can impact significantly on the calculation of an equalizing payment on separation/valuation so do not "self-prescribe" in this complex area of family law...seek input from a family law practitioner in your area!

Stunning purple shutters in Alsace, France, via travelblog.org

What is the "table" amount of child support?

Family law Courts and lawyers use this phrase in their daily parlance - the "table" amount of child support - what does it mean?

This is one of the two components of child support payable in Canada (as opposed to a contribution to special and extraordinary or "section 7" expenses).

This component of child support is calculated based on tables which are part of the Child Support Guidelines (both federal and provincial) - hence the monicker. These tables provide net figures of monthly child support payable, based on the following factors:

1. the number of children in question;
2. the province in question;
3. the income level of the payor (and only the payor parent - the income of the residential parent is not generally relevant for the table child support calculation).

Some issues to think about when talking about the table amount of child support:

1. special considerations apply when the income of the payor parent is more than $150,000;

2. special considerations apply in shared custody and split custody situations (see my earlier post about the confusion surrounding the issue of the word "custody" in these situations).

3. the question of "income for support purposes", ie: the income to be used when determining child support obligations under the tables, is not an easy one, particularly in situations where the payor parent is self-employed.

The table amount of child support is neither taxable to the recipient parent nor tax-deductible to the payor parent.

A beautiful fence in Northern Ontario..

Photo by AJJ