"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. 

Child Support - who gets it and why?

A simple, straightforward-sounding question, right?

...and yet, so many people misunderstand the concept, who is entitled to receive child support and why. Here is some basic information:

1. Child support is the right of the child (or children, depending on your case). This means that parents have limited rights to make "deals" about child support;

2. Generally speaking, child support is paid to the parent who has care of a child on a day-to-day basis, either primarily or by sharing that responsibility with the other parent; *

3. Child support is meant to fund a child's expenses - both day-to-day expenses but also special expenses like sports and other extra-curricular activities;

4. When the child in question is a minor, child support is paid to the parent who incurs expenses for the child (and not to the child directly - we get a lot of questions about this point);

5. In Canada, there are two elements to child support:

a. the table amount - the recurring monthly amount which is calculated based on the non-primary-residential parent's income; and

b. an additional payment (paid either monthly or at some other frequency) which is the non-primary-residential parent's contribution to special or extraordinary expenses like extracurricular activities and schooling/daycare;

6. Child Support does not necessarily end when a child turns 18. It continues for a reasonable period of time while the child (young person) remains financially dependant on his or her parents, either for medical reasons or because of ongoing school attendance.

These are the bare basics - there is a lot more to child support and you should get advice on the specific circumstances of your case.

*special considerations apply when two parents have one child each living with them and also when a child spends at least 40% of the time with the non-residential parent.


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! 

Limited Scope Retainers and Unbundled Services - BlogBite

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Question: What is a Limited Scope Retainer? I have heard of "unbundled" legal services, what does that phrase mean?

Answer: Both of these terms relate to a scenario where a person requiring legal services or advice hires a lawyer to deal with only a part of their case or a specific issue in the case, as opposed to dealing with the entire case as part of a classic retainer. Limited Scope Retainers are becoming increasingly common. With growing frequency, individuals who cannot afford legal representation for their whole case engage a lawyer to assist them with specific parts of the case, specific issues or specific questions which arise as they represent themselves.

We do provide unbundled services - if you have any more questions, call us! (905) 898-8500.

"My ex-wife is now married to a rich guy" - BlogBite

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Question: My ex-wife is now married to a rich guy. They live in a mansion and she drives an Audi. She does not need child support from me. Do I still have to pay it?

Answer: The answer is "yes".

The obligation of a parent to support a child is rooted in the parent/child relationship between them (and this includes non-biological children with whom the adult acted like a parent). In other words, it is you and your child who have a fundamental, including financial relationship. The child support you pay it not the right of your ex-wife. It is the right of your child and they continue to be entitled to receive it from you.

You pay child support based on your income, whether high or low. Your ex-wife's financial circumstances may mean that in the end, your child may enjoy a more affluent standard of living because of his or her mother's new financial circumstances but that does not affect your fundamental obligation to support your child.

By way of example, if you make $25,000 a year and your ex-wife's new husband makes $500,000, you still have to pay child support based on $25,000 but you are not expected to pay enough support to match her and her husband's $500,000 lifestyle.  Remember, you child is still entitled to support from you based on $25,000 worth of income.

"Can I change the locks?" - BlogBite

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Question: My husband and I are separated.  The atmosphere in our home is very uncomfortable and I do not think  it's good for the kids. I would like him "gone". Can I change the locks while he is at work?

Answer: No, the law does not permit you to do that. Married spouses have equal possessory rights to the matrimonial home, no matter who is actually on title (owns it). Those rights can only be set aside in one of two ways:

1. your spouse agrees to move out; or
2. the Court Orders your spouse to move out.

Changing the locks without his knowledge means taking away his possessory rights without his consent or Court Order.

If you feel that you must protect your own safety and the children's, changing the locks is not a solution to the problem - if safety is an issue, you MUST call the police.

Do you have more questions? contact us...

"Am I entitled to my child's report card?" (8)

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Question: "My ex-wife has sole custody of our son. She says that because of this, I am not entitled to our son's report card. Is this true?"

Answer: no - her position is not correct. Unless there are exceptional circumstances in your case, like every parent you are entitled to be informed about your child's academic progress. The fact that your ex-spouse has sole custody does not eliminate that right.

Do you have more questions? call us....

"I am separated and can't cope" - BlogBite

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Question: "I am separated and I can't cope. I am so devastated, I cannot even face dealing with all of the issues which I have to face, now that the relationship is over. What am I to do?"

Answer: For most people, separation results in a fundamental shift in everyday reality. Most people cope with it, over a period of time. The length of time it takes to normalize one's life after separation depends on a whole series of factors, most importantly - the individual himself or herself.

Here are some tips and suggestions:

1. Do not beat yourself up - being hard on yourself will make you feel even worse about the situation. Be kind to yourself and remember that a separation can be as devastating as a physical accident - your feelings and emotions have sustained a trauma - this time takes time to heal.

2. Help the healing process - even if you are incredibly hurt, it is important to take steps forward, little ones if necessary, but forward. Rely on your support network of friends and family. Share your grief with those close to you. Join a support network, online or in person. Seek help from professionals like doctors, therapists and counselors. You may also consider turning to someone who shares your faith for assistance - a rabbi, a pastor, a priest.

3. Do not bury your head in the sand - inertia does not advance your situation to a conclusion. Move forward by tackling the issues, at your pace. Get legal advice on the issues in your case, so that you are better equipped to make calm, rational, organized decisions about them.

..and if you have any questions, please contact us. We will do our best to help.

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! 

Spousal RRSPs - mine or hers? - BlogBite

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Question: during the marriage, I contributed to my Wife's RRSP - on separation, is it mine or hers?

Answer: It's hers. That being said, if you were married, on separation you will receive one-half of the notional value of the RRSP through the equalization mechanism (the division of assets in Ontario). The RRSP will be one of the assets listed as part of her net family property and will be equalized with you.

Do you still have questions? Please call us for a free 30 minute consultation.

What is an uncontested divorce?

The answer to the question above depends on how "divorce" is defined.

If by divorce, we mean the steps of formally ending the parties' marriage by a Divorce Order, granted by the Court, then here, an uncontested divorce is one which is either:

(a) proceeding on the consent of both parties; or
(b) is requested by one party and not opposed by the other.

A divorce in such a case can proceed either at the request of one spouse or based on a joint Application made by both parties. Uncontested divorces are quite common - they involve primarily the completion of the required paperwork, its service on the other side, its filing with the Court and a Judge's signature.

If by divorce, we mean all of the issues arising out the separation of a couple (for example custody, child support, spousal support, etc.) then uncontested divorces in this instance are less common but they are still possible. There are couples who work out all the terms of their separation directly with each other and then one retains a lawyer to incorporate them into a separation agreement, for example. There are also situations where the agreement is reached in the context of mediation.

Not every separation results in an "all-out fight" between the spouses - if you are interested in finding out how to complete a sane separation and divorce, please contact us for more pointers.

Dividing contents....

There are, believe it or not, couples who manage to divide the contents of their residence together, whether a home, a cottage or apartment, in a civilized, calm and organized way. It's not as uncommon as you think and it IS entirely possible.

For situations where that has not happened, contents can become a true battleground, with each party "staking" what they want and sometimes even saying they want "that" simply because the other spouse wants it as well. In those situations, you need a game plan, a method for addressing the problem.

Simply removing the items you want, without the other spouse knowing you will do so in advance, is never a good idea. It will cast a shadow over your actions and motivations, and if the matter ends up before a Judge, your spouse will surely advise him or her of what you have done, asking that unfavorable inferences be drawn from your actions.

Firs of all, what are contents? - they are "stuff" you and your spouse used together as part of your relationship. Stuff in your home, your cottage, your apartment. It is not the same as personal possessions. Your stamp collection is not part of contents and neither is her clothing or his shoes. The contents of your spouse's home-office desk are not part of contents - they belong to your spouse.

Also, contents are not necessarily things which only both spouses paid for. There are many situations in which only one spouse paid for all of the stuff in the house and this stuff is still "contents". If you are unsure, speak to a lawyer about this issue.

We believe that if you and your spouse cannot agree on how to divide contents, as a first step, each of you needs to make a list of ALL the contents of your residence. Then, on each list will be identified personal possessions and other items, such as gifts and inheritances, which do not form part of contents either (this is a very important point and if you have such items, it is vital that you speak to a lawyer for advice on how these items are dealt with and why). On your list, you can then identify which of the contents you are interested in having. You then exchange your lists. The items on which you and the other spouse agree are no longer contentious. Only those items which you both appear to want are.

For the items on which you cannot agree, there are a variety of approaches. Get legal advice on this point as one may be particularly suited to your case. There are also alternatives to creating lists, including marking contents with multi-colored stickies, valuing them all professionally and then dividing by value, or one spouse keeping all and the other spouse getting credit for one-half of the value.

We can say one thing with confidence - Courts do not like to get involved on the issue of contents and prefer that spouses deal with them themselves. If you are before a Judge dealing with contents, be prepared for a long and detailed consideration of the issue, which can be drawn-out and expensive. Try to avoid it if you can.

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

We are re-posting here an updated version of a post from 2012. 

This is the age of mass media - TV, video, Facebook, Twitter, Netlix. An average person's view of the world is greatly affected by what media portrays and pushes on the consumer. This includes the public's perception of court and the legal system in general.

For example, TV shows and movies teach that legal battles are waged in the court room, with fist-pounding lawyers and finger-wagging judges. In fact, some of the battle is fought in front of the court, in press skirmishes where reporters (and the viewers) have a chance to see lawyers expound on the merits of their clients' cases, sometimes with a "we will show you" attitude.

Reality is not what you see on TV. There are no surprise witnesses (our justice system does not allow for them) and polygraph tests have very serious limitations, particularly in family law.

What you also do not see in the media-packaged versions of court and the legal system are the tremendous costs 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, be-all-end-all solution you may think it is.

There are cases/situations where the involvement of a Judge is necessary to move the case forward. When parties are stuck on a legal issue/principle and cannot reach a compromise, a Judge's view of the legal issue may be necessary to break the log-jam. 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, however, settlement is always the preferable solution. Despite a commonly-held perception, negotiation and settlement is not a sign of weakness. It is a sign of strength and maturity on the part of both parties that continued conflict and entrenchment is emotionally draining and expensive.

Settlement is usually the best outcome for all concerned, assuming the parties both understand their legal rights, are making the bargain freely and without pressure or duress, understand the basis of the bargain through solid disclosure and have had an opportunity to get legal advice.

In the end, settlement polarizes the parties less than does a court case, where there is sometimes a clear winner and a clear loser (perhaps not of the entire case but issue by issue).

In a settlement, the parties are the authors of the terms of their agreement. They have "ownership" in the outcome. 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 for you and your family.  These outsider-decisions 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.

WE are ABLE to help. We are great proponents of mediation, for example, and have worked with many mediators in Ontario. 

"I am confused about child support...."

Child support is an area of Family Law on which were receive most questions. There is much confusion on what child support is, who gets it, why and for how long?

Why is there so much confusion? We cannot come up with a definitive answer but we suspect that "popular culture" and "urban legend" have contributed to the formulation of a number of myths and misconceptions about this issue.

This post is designed to give you only the basics of child support in Ontario - this information is NOT sufficient to enable you to deal with child support on your own as "one-size-does-not-fit-all" - the specific facts of your case may lead to a specific result, not addressed here - see a Family Law lawyer for advice on how the law of child support applies to your case.

We have seen many cases in which some element of child support was misunderstood by either the payor or the recipient for years at a time - this misunderstanding led to unfair results.....do not let that happen to you.

Question 1: what is child support?

Answer: at the most basic level, child support is financial assistance with a child's expenses.

Question 2: what kind of "expenses"?

Answer: it means all expenses, as long as the child remains eligible to receive child support.

Question 3: you mean food, clothing AND even college?

Answer: yes - the cost of college/university does fit into the definition of "child support"

Question 4: what forms can child support take?

Answer: many forms. For example:

(a) the table amount of child support, paid monthly to the other parent;
(b) contribution to special or extraordinary expenses, like ballet, camp or braces - payment directly to the other parent;
(c) contributions to the cost of college, with tuition payments for example being paid directly to the college;
(d) monthly payments to a university student to assist with his or her "room and board" while at school;

-the list goes on.

Question 5: when does child support end? - is it then a child turns 18?

Answer: no - child support continues after the age of 18 in situations where the young person is unable to become financially independent, generally for the following reasons:

(a) they are attending school OR
(b) they have health issues which prevent them from completing schooling and/or becoming financially self-sufficient.

Question 6: does the child over 18 have to attend school full-time in order to qualify?

Answer: not necessarily - you need to get advice from a lawyer on the specifics of your case to have a specific answer to this question.

Question 7: who pays child support to whom?

Answer: generally speaking, the parent with who a child or children live most of the time receives child support from the other parent. The calculation of child support becomes more complex when a child or children live with one parent at least 40% of the time - you need to see a family law lawyer to assist you with this situation.

If you need further answers to child support-related questions, we have them. Again, it is not wise to deal with your family law case simply by relying on information you find on a internet - we provide free consults. Many other lawyers do as well. Get legal advice. It's important.

Our Family Wizard - how to "speak" to the other parent.....

Separation and divorce strain communication - that is because high emotions of disappointment, hurt and even anger are involved. And yet, in many cases, parents must continue to communicate about their children - this involves setting aside their own emotions for one another and focusing on the children's needs. 

Here is one suggestion of how they might do so effectively: 

Imagine: Parent 1 and Parent 2 recently separated. Parent 1 is supposed to pick up Child from school but is caught in a meeting that seems like it will never end. Parent 1 sends an email to Parent 2 (underneath the table so as to not draw any attention) asking Parent 2 to pick-up Child. Email goes to Parent 2’s junk folder and Child is left at school wondering...

When a relationship breaks down and there are children involved, effective communication between parents is essential to any successful co-parenting arrangement.

Our Family Wizard is an affordable software tool that is designed to streamline communications between parents. Some of the features include:

·        

• Calendar: This allows parents to clearly delineate parenting time or post when a child has an activity scheduled.

• Message Board: Parents can communicate freely about any child-related issue using the Message Board. Along with all of the other features of traditional email, Our Family Wizard indicates when a message has been viewed by the receiving Parent (avoiding the hypothetical situation described above). Parents also have optional access to the “ToneMeter”, which checks the tone of a message against 8 levels of connotative feeling to ensure that what you type is what you mean – no more 24 hour rule!

• Expense Log: When one parent incurs an expense on behalf of the child, and is seeking reimbursement from the other parent, s/he can post the expense and attach receipt/proof of payment on Our Family Wizard. This feature also allows you to keep a live record of payments on account of children’s expenses.

Because Our Family Wizard is a centralized and comprehensive hub of communications between parents, third party professionals can view the exchanges to offer insight in to how parents can better communicate with each other in light of the children’s best interests. Our Family Wizard is also a useful tool for Courts in understanding children’s issues in a particular family law case.

For more information, please go to: Our Family Wizard

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! 

3 Excellent Reasons to Try Mediation

Sometimes, the circumstances of a family law case require the involvement of a Judge. For example, the parties cannot agree on an important point of law and their deadlock can only be resolved by a Judge who makes a decision on the legal point. Or, by way of another example, parents disagree on what is best for their child and a decision has to be made quickly to address the child's best interests.

There are many family law cases, however, in which mediation is a viable option to address the many issues which result from relationship/marriage breakdown.

Here are our 3 Excellent Reasons to try mediation in a family law case:

1. You and your spouse get an opportunity to discuss difficult and sometimes uncomfortable topics in a safe, moderated setting - a skilled mediator will assist in organizing, pacing and moderating the discussion of the outstanding issues. Often, spouses approach a breakdown of a marriage or relationship at a different pace - a skilled mediator will factor that into how the sessions are organized and ensure that no one is pushed into discussions for which they are not ready;

2. You get a chance at designing your future - Mediation is a process in which both parties have a chance to participate actively in crafting their settlement. They can do so on their own with only the mediator present or they can attend mediation with their respective lawyers. One way or another, they can and should engage in active discussions, with the mediator and with each other (as moderated by the mediator). This active engagement, through actual discussions, is not something that the court process generally accommodates.

3. Mediation can be an empowering process - you get a chance to "say your piece" - you can get across your point of view on the issues and provide explanations for the positions you are taking. A mediated discussion can be much more dynamic, much more of a dialogue, than the litigation process, for example, where generally speaking, each side presents their position and a judge makes a decision.

Mediation is not suitable for every case: - it is definitely not an option where there is a power imbalance between the parties. Appropriate (mandatory) screening will determine whether a particular case can proceed to mediation.

If you are interested in mediation and would like names of skilled mediators in your geographical area, please contact the office and Carolyn will be happy to provide you with referrals. We have experience with many mediators throughout the GTA and surrounding areas.