As soon as one of the following three circumstances has occurred: the other spouse has committed adultery, the other spouse has committed cruelty, or the spouses have separated. As soon as one of these circumstances has occurred, a spouse can commence an application for divorce. If separation is used as the ground to obtain a divorce, the spouses need to have been separated for at least one year before a judge will grant a divorce judgment.
When the spouses have signed a separation agreement that has resolved all issues such as custody, access, support and property division, and they now both want to be divorced, then one of the spouses can commence a petition for divorce that consists of a request for a divorce only. One spouse has it served on the other spouse. If the other spouse agrees to a divorce, then he or she may choose not to contest the petition for divorce. That is why it is called an uncontested divorce.
An uncontested divorce usually takes between eight to 16 weeks. A petition for divorce that is contested usually takes much longer. There are many factors that affect the length of time it takes to get divorced. Unless the reason for the divorce is adultery or cruelty, the spouses must have lived separate and apart for at least one year.
In Canada, the Divorce Act permits a spouse to seek a divorce if the other spouse has committed cruelty. But this does not entitle the victim to collect compensation for emotional distress. In fact, Canadian law seems to minimize the relevance of spousal misconduct when determining the issues of custody, access, support and division of property. However, a Wyoming Supreme Court decided that extreme and outrageous conduct by one spouse that results in severe emotional distress to the other spouse can create a cause of action for intentional infliction of emotional distress and entitle the victim to collect compensation for her suffering. In the decision of McCulloh v. Drake (Wyoming, 24 P. 3d. 1162 (2001)), the court heard that shortly after the husband and wife were married, the husband began to physically and sexually abuse the wife. The trial court found that the wife had proven the abuse and the emotional distress that she suffered. The husband appealed this decision by arguing that intentional infliction of emotional distress within a marriage is not a tort (a legal wrong.) In an effort to preserve domestic harmony, courts have tried to remain indifferent when it comes to regulating behaviour within a marriage. However, courts have recently begun to distinguish claims for civil relief in marriage cases by pronouncing that a tort claim may provide a better remedy for spouses than a divorce claim. The court concluded that “emotional distress is as real and tormenting as physical pain, and psychological well-being deserves as much legal protection as physical well-being.” In preserving marital harmony as their main goal, the court held that “behaviour that is truly outrageous and results in severe emotional distress should not be protected in a misguided attempt to promote marital harmony.” It remains to be seen if Canadian courts will follow this reasoning.
Yes. If a spouse or a child is in danger because the other spouse has a history of violence or has made threats of harm, a spouse may ask a judge for an immediate restraining order to protect the spouse and the children.
Yes. Before any agreement is made, each spouse should obtain independent legal advise from a divorce lawyer who will advise the spouse on his or her family law rights and obligations. This is necessary in order to recommend terms of settlement that are fair, practical and enforceable. It may not seem necessary now, but it can prevent many problems from arising in the future and reduce further cost and grief. Each spouse’s own divorce lawyer will protect that spouse’s own legal interests, inform that spouse of issues that he or she may not have considered and ensure that any agreement is fair, practical and enforceable.
Do-it-yourself kits are available. However, simply filling out forms is not the equivalent of obtaining critical legal advice and professional representation. The court system involves very serious and complex issues that will affect your life and the lives of your children. A person who fills in a blank court form is under the false impression that his or her legal rights and obligations will be properly determined by a judge. The prejudice to your case, the probable delays and the unnecessary stress is far more expensive than the cost of proper legal advice and representation.
Many clients do not understand that the information they put in court forms may be damaging to their case and can never be removed from the court record. Many clients do not understand what legal rights are available to them and what strategies they should employ to advance their legal interests. Many clients do not understand how to present their case, orally and in writing, so that they will achieve their objectives in the fastest, simplest and least costly method.
Divorce lawyers are educated, trained and licensed to represent spouses in court. Divorce lawyers are familiar with recent changes in the law and are familiar with the court process. The court process is complex. It is based on rules of procedure, such as the Rules of Civil Procedure and the Family Law Rules. The relief sought is based on legislation such as the Family Law Act and the Children’s Law Reform Act. A Divorce lawyer is professionally trained to prepare your court documents and make oral arguments to a judge who will decide the outcome. It is critical to obtain legal advice and representation by a divorce lawyer when separating.
Going through a divorce can be one of life’s most stressful experiences. At a time of intense emotion, you are required to make critical decisions that will have a long-term impact on your future. Because the process can be so overwhelming, it is important to be guided by the right Divorce lawyer.
· Look for someone you can trust and talk to. You need to feel comfortable sharing information about yourself. The more informed your Divorce lawyer is about your situation, the more effective he/she can be in helping you.
· Rely on an expert. One reason the divorce process can be stressful is that many of your decisions will be based on information you may not have. A good Divorce lawyer will be able to answer your questions clearly and thoroughly.
· Expect objectivity. At a time when emotions are high, it’s important to have an impartial ally to explain your options and to help you make the right choices.
· Find a lawyer with good judgment. While some of the decisions you will make are legal, others are practical, but no less crucial. You may need to decide where to live, whether you should see a doctor, or go to the police. You may want feedback on what to tell your children and family. The right lawyer will be able to offer you invaluable advice, based on experience and good judgment.
· Look for a lawyer with connections. Many people assume that because they’re getting a divorce, they will have to go to court. In reality, divorce cases rarely go that far. There are all sorts of experts in the legal community trained to assist you in coming to a peaceful agreement with your partner long before the stress and expense of a trial is required. Specialists like mediators, arbitrators and parenting coordinators may be appropriate in your situation. A good lawyer will be able to assess your needs and connect you with the right experts.
· Find a lawyer with vision. A good lawyer understands that although your marriage has failed, your life still holds as much promise for success as ever. By helping you create a short-term plan, your lawyer will make certain that you and those you love are taken care of throughout the divorce process. A long-term life plan will ensure that you thrive in the future. For example, if you have children, you may worry about how they will adjust to their parents living in separate homes. With a good long-term plan, the children will benefit from having two parents who respect one another’s separate parenting identity, and who appreciate the importance each parent has in their lives. A lawyer with foresight will lay the groundwork for your successful future.
The answer depends on the best interests of the children. These are based on a long list of factors that include the emotional ties between the children and each parent, the views and preferences of the children, the ability and willingness of each parent to provide the children with guidance and education, the plans proposed by each parent for the care and upbringing of the children, and the stability of the family unit. When parents separate, each parent has a right to apply for custody of the children. A judge will make a decision based on the best interests of the children and on the arrangements that were made for their care immediately after separation.
This depends on a number of factors, including the children’s best interests, the current custody and access arrangements between the parents, the wishes of the children, the nature of the relationship that each parent has with the children, the reasons for the move, the distance of the move, and the financial ability of the access parent to exercise access.
A custody/access assessment is a detailed investigation of a family’s situation by an educated and trained professional such as a social worker, psychologist or psychiatrist. The assessor will collect information relevant to the children’s relationship with their parents and then recommend a parenting plan that suits the best interests of the children. The assessor conducting the assessment will meet with the parents and the children, and sometimes with other people who are involved in the children’s life. The assessor will then write a report for the judge which contains recommendations on custody and access. In most cases, the parents are responsible for the cost of the assessment. In some cases, the judge may ask the Office of the Children’s Lawyer, a government agency, to conduct an investigation and report back to the judge with recommendations. The Office of the Children’s Lawyer may assign a social worker to conduct the investigation or assign a lawyer to meet with the children so that their wishes can be communicated to the judge.
It is common practice to use a personal journal or day-planner to record the history of access, especially in situations of conflict. But in the decision of Hartland v.Rahaman (Superior Court of Justice, Campbell, J., November 14, 2001), the court ruled that the use of the journal was not admissible as evidence.
In that case, the mother prepared a journal related to a child’s behaviour around access visits with her father. The parties in this case were involved in an ongoing dispute regarding the father exercising his access rights. The child was exhibiting problematic behaviour around the time of her access days. The mother notified her family doctor of the situation. The doctor felt that the behaviour could be associated with the access visits and advised the mother to keep an ongoing journal of the child’s behaviour.
The mother then brought an application before a judge regarding the father’s access. At trial, the mother asked for permission to refer to her journal to help her refresh her memory of the incidents of negative behaviour exhibited by the child. The father applied to have this journal excluded from evidence on the ground that it was hearsay evidence. The court ruled that the journal was not admissible because the mother had no independent recollection of the events recorded in the journal. In addition, the court found that because the mother only recorded the negative behaviour of the child, the value of the evidence was tainted.
Nonetheless, it is recommended that separated parents maintain a written record of visitation in a personal journal or day-planner so that it may be referred to, in the event that there is a dispute as to the time, quantity and quality of access visits. The record should include as much detail as possible, such as the date, time and circumstances of each visit. The issue of admissibility of this evidence will be examined and addressed by your family lawyer.
Sometimes, parents separate because of domestic violence, substance abuse, or because there is significant antagonism between the parents. There are also instances where there has been a lengthy separation between the parent and child. Sometimes, one parent does not interact appropriately with a child, possibly causing emotional distress to the child. There may be a risk of abduction.
In these cases, the child’s health and safety must be protected during access visits. Supervised access centres offer such parents a method to address these issues while still allowing access visits to occur. These centres provide a safe and secure setting where access visits and exchanges (pickups and dropoffs) can take place under the supervision of trained staff and volunteers. Staff and volunteers have special skills and are trained to be aware of issues such as family violence, child development, physical, verbal and emotional abuse, mental health, and substance abuse problems. Staff and volunteers are sensitive to the needs of the child, particularly children who are involved in high-conflict custody and access disputes.
Supervised access centres provide a safe, neutral and child-focused setting for access visits between a child and the access parent. Supervised access centres ensure the safety of families, staff and volunteers by staggering dropoff and pickup times, by having staff greet the child at the front door and accompany the child during the visit, and by providing enclosed play areas. Some centres record and provide factual observations of the visits.
As an alternative to using a supervised access centre, the parents may both agree to allow a family member or friend to supervise the access visits or to facilitate exchanges.
With children being born to parents later in life, mothers working full-time and fathers being actively involved in parenting their children, coupled with a high divorce rate, it is no surprise that fathers expect to be considered custodial parents, equally with mothers, when they separate. Yet the traditional view of mothers as primary caregivers often collides with this new reality. Stemming from these historical and contemporary images of parents come values and attitudes which trigger actions and behaviours that cause post-separation conflict.
Dr. William Austin and Dr. Marsha Kline Pruett explain that ‘Parental Gatekeeping’ is where attitudes, actions and/or legal positions by one parent are designed to limit the other parent’s access, contact or involvement with their child. These restrictions are often based on assertions that the other parent’s involvement places the child at risk for harm, emotional distress, behavioural problems, adjustment difficulties, or negative developmental impact.
‘Restrictive Gatekeeping’ is where one parent, usually the mother, defines the role of the father and attempts to script his attitude and behaviour as a parent. The social science explains that ‘Restrictive Gatekeeping’ is more likely to produce lower child adjustment by producing more conflict and harm to the quality of the other parent-child relationship. On the other hand, ‘Facilitative Gatekeeping’ is more likely to produce better child adjustment through higher involvement of both parents and less exposure to parent conflict. This positive version recognizes the value of the other parent, appreciates the other parent’s social capital, invites proactive and cooperative co-parenting and generates win-win-win outcomes for families, parents and, most importantly, their children.
Some causes of Restrictive Gatekeeping are gender role beliefs, insecurity in parental identity, perceived parenting incompetence and need for control.
Most worrisome is the research that shows that the risk of harm to children by Restrictive Gatekeeping is often greater than the gatekeeping parent’s perception of harm by the other parent.
So now we have a new label for disputes where one parent attempts to limit the child’s relationship with the other parent.
Judges have the power to enforce court orders for access in Family Court. Specifically, a custodial parent who willfully disregards a court order may be found in contempt of a court order. A finding of contempt is considered quasi-criminal in nature and could result in serious penalties, including imprisonment. As a result, the person accused of contempt is provided with many safeguards. The custodial parent must be personally served with notice. Contempt must be proven ‘beyond a reasonable doubt’, just like with other crimes. The custodial parent is entitled to remain silent and not testify. The access parent must prove that the contempt was a willful violation of the court order.
In many of these cases, Family court judges are interested in ascertaining why the custodial parent acted in such a way. If the parent willfully denied the other parent access to the child, the judge has the power to order make-up access, fine the custodial parent, order costs against the custodial parent, transfer custody of the child to the access parent and even have the custodial parent arrested and incarcerated. These decisions are largely dependent upon the circumstances in each case.
Even in some cases where the custodial parent acted willfully to disobey the court order, a judge may act with leniency if penalizing the custodial parent will cause emotional harm to the child. That is what occurred in a recent decision of the Ontario Court of Justice. In A. (R.G.) v. C.(K.A.)  O.J. No. 2496, the judge ultimately denied the father access to his 10 year old son even though the custodial parent breached the court order for access to deny the child a relationship with his father. The case had been before the court for 4½ years without any access having occurred. This was notwithstanding the father’s protracted efforts to see his son. Throughout the litigation, the mother refused to comply with the judge’s orders and thwarted the father’s access including denying parentage, threatening criminal harassment charges and making unproven allegations of sexual abuse. The judge even assigned the child his own lawyer and directed that his doctor reintroduce the child to his father. All these efforts failed as the mother refused to bring the child to the appointments. As a result, the child’s views were unknown to the judge and the experts, who were unable to determine what was in the child’s best interest.
In the end, the judge found that the likelihood for a successful reintegration between the father and his son was very low. By then, the child had not seen his son for over 7 years and, as a result, the father was a stranger to his son. Moreover, the judge considered the adverse impact that further court proceedings or penalties would have on the child and determined that it would not be in the child’s best interests. Similarly, it noted that any orders made would likely be ignored by the mother, thereby being futile.
This case raises an important debate in high-conflict custody cases. On one hand, judges must consider what effect an order will have on the welfare of the child. On the other hand, judges cannot sanction a parent’s willful disregard of a court order regarding children.
In 1961, Mr. Justice Pearce stated in Attorney-General v. Harris:
“A breach with impunity by one citizen leads to a breach by other citizens, or to a general feeling that the law is unjustly partial to those who have the persistence to flout it.”
Disrespect for the law is a serious matter. The concern with this recent decision is that it may set a dangerous precedent by rewarding parents for taking matters into their own hands and disregarding the law.
It is a universally accepted truth that separation is highly disruptive to the life of a child. Children are usually very aware of the situation at home, yet they have no control over the choices or actions of their parents. When their parents decide to separate, children are given little advance notice and almost no input into the new residential arrangement. In many cases, they are forced to move out of their home, away from their friends and sometimes to new schools.
Despite the turmoil that the parents are facing, particularly in high conflict cases, family court judges are making more creative and child-focused orders regarding custody and access. Specifically, they are making the children the main priority by considering their aversion to change and their need for familiarity, stability and permanence – all during an otherwise unstable moment in their life.
This was the situation that Mr. Justice Graham faced in the case of Bodenstein v. Bodenstein  O.J. No. 996. In that case, the mother was asking for exclusive possession of the family residence (i.e. an order evicting the father from the home and permitting the mother to reside in the home with the children). The mother claimed that the circumstances in the home were intolerable and that the children needed a home, free and clear of the conflict between their parents.
The court dismissed her request and instead acted to promote the best interests of the children by maximizing the children’s contact with each of their parents, pending the establishment of a temporary or permanent parenting plan. Mr. Justice Graham ordered a ‘week about nesting arrangement’ until the sale of the matrimonial home. That is, the children were to remain living in the matrimonial home, while each parent rotated in and out of the home for one week at a time with the children.
The court gave very little weight to the fact that the mother had left the home with the children for about 7 months – a decision she made to reduce the conflict that the children witnessed. The court stated that it should be careful not to treat the decision of the moving parent as creating a status quo, or as an indication that the parent should not have an equal parental role.
When a couple decides to part ways, it is often hardest on the children. They are forced to adjust to a new routine and a new or secondary home. To ease them into their new reality, parents need to create a warm, inviting and personalized space for the children so that they feel comfortable. Here are some tips on how to make a new or second dwelling feel like home:
1) Create a ‘Kids Zone’. Ensure there is a designated space for the children. Having their own bedroom will make them feel less like a guest and more like their home. If finances don’t permit, try to make the shared space special to them or designate a part of that space specifically for the children. Ensure the space has the functionality the children require such as sleep space, homework space, play space, space for friends, etc.
2) Involve the children in the process. No matter how old they are, have the children help decorate. If hiring a professional, have them consult with the children too. If they are older, set a budget and partner with the children in the design of their space. If they are younger, let them pick out their own pillows, bedding and decorations. If budget is a factor, create some DIY projects they can help with to save money. If they have a hand in creating their space, they will be more excited about it and it will be a more positive experience for them despite their parents’ separation.
3) Don’t be a hotel. Ensure they have a second set of key things so that they do not have to pack a suitcase every time they come over. They need to feel like it is their home, not a vacation. They may even want their room decorated the same way as their other home – which is fine. A second toothbrush and other toiletries, a good supply of clothing and pajamas, linens, toys, school/art supplies, etc. would be great to have. If they have a specific item they are attached to, try to purchase a second one. This way when they come over, they are coming home, rather than coming to visit.
4) No surprises. Keep a calendar visible that shows the children’s extra-curricular activities, when they will be with mom and dad, any family events they will participate in, etc. This way, they will feel more in control.
These tips will help ease children into their new environment and routine. If they are in a happy space, it will definitely help boost their mood and help them better cope with some of the feelings they may be having related to the separation. Even if it takes a small investment, it will be well worth it in the end.
By Erin Lazer, Owner of SpaceStyle Home Staging, Organizing and Design, www.SpaceStyle.ca, email@example.com
A parent who does not have day-to-day care and control of the children usually will be responsible for paying child support. The amount is based on that parent’s income and on the extraordinary expenses of the children.
This is a complex question. In answering it, there are three questions that need to be considered. Firstly, is a spouse entitled to support? Secondly, what is the amount of support that should be paid? Thirdly, what is the duration that support should be paid for? When determining spousal support, the judge requires that each spouse file a sworn financial statement which contains a monthly budget. This way, the judge can see the total monthly income and expenses of each spouse. The judge will consider the financial need of the spouse that requests support, the financial ability of the other spouse to pay support and the standard of living that the spouses maintained before separation.
Child support is paid as long as the child is a dependent. Usually, a dependent child is one who is under the age of 18 years. In some instances, child support may continue past the age of 18 years if the child is not financially self-sufficient because of an illness or disability or because the child is going to school full time.
The Child Support Guidelines state that there is a presumption that one parent pays the other parent child support according to the payer’s annual income and the “table” amount. [To see the child support tables, go to www.benmor.com, Links, Federal Child Support Guidelines]
For example, a non-custodial father of 2 children who earns $40,000 per year would pay a table amount of $570 per month. But a family court judge is given the discretion to deviate from the table amount and reduce the amount of child support payable if the payor has the children in his or her care for 40% of the time during the course of a year. The discretion is based on section 9 of the Child Support Guidelines.
Because there is no formula that can be applied in an equitable way in all circumstances, this discretion has caused confusion.
In the 2002 decision of Contino v. Leonelli-Contino, the appellate court set out guidelines for considering a deviation from the presumption that one parent pays the other parent child support according to the payor’s annual income and the table amount. The appellate court stated that there is a presumption in favour of the table amount. However, the parent seeking a deviation may establish on clear and compelling evidence that a reduction in child support is in the children’s best interest, and also based on the circumstances, as described in section 9 of the Child Support Guidelines.
In the 2003 decision of Walsh v. Walsh, the wife asked the judge to order her ex-husband to pay a shortfall of child support in the sum of $43,000 for the past few years because his income rose.
In 1997, the court ordered her ex-husband to pay child support pursuant to the Child Support Guidelines based on an income of $175,000. In 2002, the wife discovered that her ex-husband’s income ranged between $214,000 and $376,000 per year for the past few years resulting in a shortfall of approximately $43,000, which her ex-husband should have paid in child support.
The court held that her ex-husband knew that his child support obligation was based on his income, but chose not to disclose his income voluntarily. In the court’s view, he could not now hide behind the defence that the children should not have the benefit of his increased income for this period because his wife did not request his income tax returns until 2002. The ex-husband was ordered to pay the entire shortfall in child support within 45 days.
Since the enactment of the Child Support Guidelines in 1997, the monthly amount of child support is primarily based on the income of the non-custodial parent, the number of children in the family and which province the children reside in. Tables are published that set out the amount that the non-custodial parent must pay to the custodial parent. The table amounts are for the children’s ordinary expenses such food, clothing and shelter. For example, a non-custodial parent of two children in Ontario who earns $40,000 per year will pay to the custodial parent a table amount of $570 per month. The custodial parent’s income becomes relevant where the children have special or extraordinary expenses such as daycare, extracurricular activities or private school tuition. In that case, the parents share these costs in proportion to their incomes.
No. Child support is to provide the children with food, clothing, shelter and the necessities of life. It is not appropriate to deprive children of this because the other parent has acted unreasonably. There are other remedies available such as a change in custody or access, or a motion to find the other parent in contempt.
This very issue was addressed by Mr. Justice Allan Boudreau in the Nova Scotia Supreme Court decision of Peters v. Graham (N.S.J. No. 452 (November 15, 2001)). The court ordered that a man whose wife deceived him into believing he was the biological father of twins for ten years pay child support, albeit at a reduced amount, since the children have two other fathers. Gregory Neil Peters argued that he should not have to pay support because he was misled by his ex-wife, Lisa Anne Graham, regarding the children’s paternity. The father stated that he would like to continue having a close relationship with the children, however, not as a father, but as a friend. The lawyer for the ex-wife argued that the decision should emphasize the best interests of the children and not focus on the actions of the parents. Under the Child Support Guidelines, a judge has the discretion to order a spouse or former spouse who is not a biological or adoptive parent, but who stands in the place of a parent, to pay child support.
If child support is supposed to be calculated based on income, then it is reasonable to assume that if a person’s income is reduced because of job loss, then child support should also be reduced. But in the case of Aboagye v. Sakyi  O.J. No. 575, Mr. Justice Sherr ruled that if an employee is fired, he cannot avoid child support based on his own misconduct.
In this case, the parents had four children aged 13, 11, 9, and 4 years. The father worked full-time at two different jobs for at least two years prior to the parties’ separation. He had worked as a forklift operator for one employer since 1996, and as a machine cleaner for a second employer since 2007. The father’s Notice of Assessment for 2009 showed that he earned a gross income of $62,500. The father left his second job as a cleaner at the end of June 2010. He continued working as a forklift operator. The father did not pay any child support until the fall of 2011 and accumulated over $17,000 in child support arrears. The father earned $50,755 in 2012. In court, the father testified that he was fired just three days before the trial began. He stated that he was given vacation pay, but no severance payment. He claimed that this dismissal was wrongful and he planned to sue for wrongful dismissal. The mother testified that the father was a liar and that he conspired with his employer to engineer his job loss for this case.
The father’s employer stated that the father was warned twice about poor performance and was dismissed for cause. The employer listed reasons for his dismissal that included:
The court held that if the employer was justified in firing the father, then the father cannot use his dismissal as grounds for reducing support. Where the loss or reduction in employment income is the result of one’s own actions or misconduct, the support obligations will not be reduced or cancelled. Moreover, the court stated that if the father is correct that he was wrongfully dismissed, he will likely receive a significant income-replacement award.
In the end, the court imputed to the father an income at $41,000 per year, and was ordered to pay child support based on this amount.
The On December 31, 2011, the federal government introduced new tables for the amount of child support to be paid each month.
The first tables were introduced on May 1, 1997. These tables were subsequently amended on May 1, 2006. This is the third set of tables in 14 years.
This change will impact hundreds of thousands of families throughout Canada where one parent pays to the other parent child support under these tables. In some cases, the child support payor will experience a reduction in child support. In other cases, the child support recipient will be able to collect a greater sum in child support.
For example, under the old tables, a non-custodial parent earning $21,300 would have paid $182 per month for one child. Under the new tables, the amount is $170 per month, a reduction of $148 per year. Conversely, under the old tables, a non-custodial parent earning $75,000 would have paid $1,098 per month for two children. Under the new tables, the amount is $1,105 per month, an increase of $84 per year.
The new tables can be found at http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/tool-util/apps/look-rech/index.asp
It is important to note that the 2006 tables must still be used to determine child support owed before December 31, 2011. However, the updated tables should now be used to calculate child support payable from December 31, 2011 onward.
The Family Responsibility Office is the agency of the Government of Ontario that is responsible for enforcing the payment of support for Ontario residents.
Provided the court order, marriage contract, cohabitation agreement, paternity agreement or separation agreement is filed with the Family Responsibility Office, the support will be enforced and collected on behalf of the recipient.
When the Family Responsibility Office receives a support order or agreement, it monitors and collects support payments by garnishing the support from an income source, such as an employer, and then sending the payments to the recipient.
On July 15, 2002, the Government of Ontario and the Government of the United States established an arrangement for the reciprocal enforcement of support orders. This new arrangement between the Family Responsibility Office in Ontario and the Federal Office of Child Support Enforcement in Washington, D.C. permits Ontario residents to have their child and spousal support orders enforced no matter where the payor resides in the United States (including American Samoa, the District of Columbia, Guam, Puerto Rico and the U.S. Virgin Islands.) It also enables residents from all 50 U.S. states to have their support orders enforced in Ontario.
O. Reg. 207/02, made under the Reciprocal Enforcement of Support Orders Act, amends O. Reg. 140/94 to include this new arrangement.
The Ontario Superior Court of Justice was asked to address this very question in the September 30, 2003 case of Moffatt v. Moffatt. After the couple separated in 1997, they entered into a separation agreement that placed their two children with the mother. The father was a teacher and earned $63,000 per year. In June 2001, he took advantage of a temporary window of opportunity and chose to take early retirement. He accepted the converted value of his teachers’ pension in the sum of $526,026.63 and left the workforce.
Mr. Justice Campbell decided that the father, by choice, had become intentionally under-employed as described in section 19 of the Child Support Guidelines. The court decided that the father made a decision to benefit himself and himself only. Because the father was only 54 years old when he took early retirement, and because he had an ongoing obligation to his two children, his decision had a significant negative impact on his two children.
The father was ordered to pay child support for his children in the amount of $929 per month based upon an attributed income of $70,200 per year that would continue up to the date when he otherwise would have been entitled to retire.
Canada Revenue Agency (CRA) is responsible for administering the Canada Child Tax Benefit. The benefit is a tax-free monthly payment for children under the age of 18 and is intended to help families with the cost of raising their children.
In situations involving separated or divorced parents, CRA pays the benefit to the parent who resides with the child and who primarily fulfils the responsibility for the care and the upbringing of the child. According to CRA, this is generally the mother, and therefore in situations of separation or divorce, CRA presumes the mother to be entitled to the benefit.
In cases where both parents claim the benefit, CRA will conduct a review to determine which parent qualifies for the benefit. If it is determined that the child resides with both parents, CRA will pay one parent for six months and then rotate the payments to the other parent for the next six months.
Details of this and further information can be obtained at the CRA website at www.cra-arc.gc.ca or by calling toll free 1-800-387-1193.
On December 17, 2004, in the Ontario case of Warnica v. Gering, Mr. Justice Timms dismissed Christopher Warnica’s claim for shared joint custody of a pet dog named Tuxedo. In that case, the judge stated that courts should not be in the business of making custody orders for pets. Although the judge acknowledged that pets are of great importance to human beings, Mr. Justice Timms stated that some people go to extraordinary lengths to preserve that relationship. That is why Mr. Justice Timms ultimately ended Mr. Warnica’s case.
As for pet support, in the Alberta case of Boschee v. Duncan,  A.J. 677, in addition to seeking $1,500 per month in spousal support, the wife claimed $200 per month to support her husband’s St. Bernard dog. The wife argued that she required pet support to cover the veterinary costs and the costs of feeding and caring for the dog after her husband left the dog in her care. The court found that a St. Bernard dog costs more to maintain and feed than the usual smaller variety. The judge hearing this case ruled that $200 per month was a reasonable sum to compensate the wife for the time and expense required to look after her husband’s dog and ordered him to pay pet support.
Ontario’s Family Law Act provides a formula for dividing the value of assets and debts that were acquired during the marriage. The method is called equalization of net family properties. Each spouse must fill out and swear a financial statement. The financial statement lists all assets that each spouse owned on the date of separation, all debts that each spouse owned on the date of separation, all assets that each spouse owned on the date of marriage, all debts that each spouse owned on the date of marriage and any gifts or inheritances that each spouse received during marriage. The financial statement will be used to calculate each spouse’s net family property. In the end, the spouses’ net family properties will be equalized.
A spouse’s pension is treated the same as any other asset that a spouse accumulated during the marriage. That means the spouse with the pension gets credit for the value of the pension on the date of marriage, but will share with the other spouse the rise in the value of the pension during the marriage. The pension will need to be valuated by a professional to determine its value on the date of separation.
It is not unusual for marriages to suffer because of a family’s financial difficulties, growing debt-loads, a spouse’s loss of employment, the reduction or loss of the wife’s employment income when children are born, and many other events that may occur within a family that place undue financial stress on the marriage.
In some cases, the financial stress may cause marital breakdown and separation. It is in these situations that a spouse who turns to counsel for legal advice discovers that Ontario property law does not provide that spouses are required to share their family debt.
Section 4(5) of the Family Law Act provides that:
“If a spouse’s net family property as calculated under subsections (1), (2) and (4) is less than zero, it shall be deemed to be equal to zero.”
In effect, spouses who are separating and who have an unequal distribution of debts amongst them, or a couple where the bulk of the family assets are held by one spouse, while the other spouse holds the family debt, are likely to suffer even greater hardship than they experienced prior to separation.
To illustrate this dilemma, the next two examples demonstrate cases of financial hardship under the present legislation.
Example A – Both Spouses End Marriage with a Significant Debt-Load
|2. Debts & Liabilities
Joint Line of Credit
|3. Net Family Property (Total 1 minus Total 2)
* Calculated value was negative.
|* $0.00||* $0.00|
|4. Equalization Payment||Husband pays
In this example, the husband in fact has a negative net family property of -$8,000.00 and the wife has a negative net family property of -$20,000.00.
Applying section 4(5) of the Family Law Act will result in each person being individually liable for the debts held in his or her name alone and be jointly responsible for the joint line of credit. In effect, this family’s debt is not equalized and will result in tremendous hardship on the wife.
If section 4(5) of the Family Law Act was repealed, then the husband would assume $6,000.00 in debt from the wife so that each spouse would equally leave the marriage with $14,000.00 in debt.
The result of section 4(5) of the Family Law Act offends the preamble of the Family Law Act that provides:
“Whereas it is desirable to encourage and strengthen the role of the family; and whereas for that purpose it is necessary to recognize the equal position of spouses as individuals within marriage and to recognize marriage as a form of partnership; and whereas in support of such recognition it is necessary to provide in law for the orderly and equitable settlement of the affairs of the spouses upon the breakdown of the partnership, and to provide for other mutual obligations in family relationships, including the equitable sharing by parents of responsibility for their children.”
Specifically, the application of section 4(5) of the Family Law Act to the facts of this case accomplish the exact opposite effect than intended by the legislation.
The result is that the spouses are not provided with an equal position, the marriage is not treated as a form of partnership and the settlement of the family’s debts is not equitable.
Example B – One Spouse Hold Assets – Other Spouse Holds Debt
|2. Debts & Liabilities
Line of Credit
|3. Net Family Property (Total 1 minus Total 2)
* Calculated value was negative.
|4. Equalization Payment||Wife pays
In this example, the husband in fact has a negative net family property of -$170,000.00, but due to the application of section 4(5) of the Family Law Act, he is deemed to have a nil value for his net family property. This would result in the wife paying him $115,000.00 as an equalization payment – one half of her net family property of $230,000.00. After for accounting for the husband’s negative net family property of -$170,000.00, he would leave the marriage with $55,000.00 in debt, while the wife would have assets of $115,000.00.
Equalizing this family’s assets and debts – without regard to section 4(5) of the Family Law Act – would result in the wife paying the husband $200,000.00 as an equalization payment. Thus, repealing section 4(5) of the Family Law Act would result in each spouse leaving the marriage with $30,000.00 in assets.
The result of section 4(5) of the Family Law Act again offends the preamble of the Family Law Act as it applies to the facts of this case in that the spouses are not provided with an equal position, the marriage is not treated as a form of partnership and the settlement of the family’s debts is not equitable.
Mr. Justice Galligan stated in the Ontario Court of Appeal ruling in Berdette v. Berdette (1) that “the intent of this legislation is to establish partnership and equal sharing of property accumulated during marriage.” This can only be accomplished if family debt is not disregarded, but evenly shared by the spouses.
Repealing this provision will not prejudice either party, as wrongful conduct by one spouse may be addressed by section 5(6) of the Family Law Act which provides the court with the discretionary power to vary the sharing of the parties’ net family properties in cases where there has been intentional or reckless depletion of family property, debts incurred recklessly or in bad faith or where one spouse has incurred a much larger amount of debt than the other spouse for the support of the family.
Is now the time to review this legislation and repeal section 4(5) of the Family Law Act?
When spouses decide to separate, joint family assets are usually liquidated and divided. The family home is often the most valuable asset that needs to be addressed. However, of all the assets, the home is the one that often carries the most sentimental value and triggers the strongest emotional response. In many cases, the separation is not mutual and, in those instances, the spouse who did not initiate the separation may not be willing to vacate or sell the family home. That is, the spouse may not want to undergo the upheaval of changing residences, changing the children’s school, leaving close neighbours or settling into a new community – all valid reasons to not want to sell the home. Alternatively, the spouse may wish to oppose, delay or obstruct the sale of the home because of feelings of hurt and anger or other reasons not considered valid. In some cases, one spouse may wish to purchase the other spouse’s interest in the family home. With any joint asset, because both spouses are the legal owners, neither has a superior right to purchase the asset from the other. Thus, in cases of a jointly owned family home, if one spouse wishes to remain in the home and purchase the other spouse’s interest, the spouses must agree on a process to determine its value and buy-out. In most cases, this is simple. The spouses retain an accredited real estate appraiser to perform an analysis of comparable homes in the neighbourhood, assess their sales history, adjust for differing characteristics such as lot size, garages, square footage and the condition of the structure, in arriving at an expert opinion on the market value of the home. This often is the best evidence of the value of the family home which the spouses can use to negotiate a buy-out.
But what happens if one spouse does not agree with the appraised value, or even multiple appraisals ? Some spouses believe that the only way to determine the true market value of a home is to expose it to the public marketplace of potential buyers. In major cities throughout Canada, homes have been sold for prices far above the listing price due to competing offers to purchase from desperate buyers. Stories of “bidding wars” and “sold over ask” have covered the real estate section of newspapers for years. Some realtors who are competing for new business may make exaggerated representations to home-owners to “get the listing” with promises of a high sale price.
In the field of divorce, it is not uncommon for the spouses to distrust one another and harbour suspicions that any agreement that is negotiated is unfair and otherwise favourable to the other spouse. This emotional state makes it easy to be persuaded by a real estate agent who is eager to obtain a new listing by promising a sale price much higher than its appraised value. In these cases, the otherwise simple process of an appraisal and buy-out is replaced with divorce lawyers, litigation and judges. Tens of thousands of dollars can be spent on interlocutory motions to compel a sale of the jointly owned family home, including contested hearings on who the real estate agent should be, whether monies should be spent on repairs and improvements, if costs are to be incurred for staging the home, orders for home inspections, vacant possession of the home to permit open houses and showings and a protocol for the collection and acceptance of an offer. In these cases, the spouse who wishes to purchase the home is to be treated the same as any arm’s length buyer. That is, that spouse is not permitted to have any advantage over any other buyer in order to ensure a fair and transparent process leading to a sale at fair market value. In the case of multiple offers, the court can order that either spouse cannot view the offers before submitting his/her own offer. For this to operate smoothly, the sale and offer process must be firm and defined in advance.
The following are 10 tips to help counsel manage the forced sale of a jointly owned family home where one spouse wishes to buy the home:
1. Get a home appraisal by an accredited real estate appraiser (AACI or CRA) and make an offer at, or higher than, its appraised value, minus a discounted sum for the real estate commissions.
2. If that offer is rejected, agree to a listing on the open market. Don’t resist such a motion but rather negotiate a process to permit a purchase by one spouse.
3. Ensure that the real estate agent retained is responsible, ethical and trustworthy so that dealings with both sides are fair and transparent.
4. Negotiate the Listing Agreement to exempt or discount the real estate commission in case of a purchase by the joint owner.
5. Set a timetable for showings including a date for a real estate agent open house, a date for public open houses and a date for the submission of offers.
6. Obtain a home inspection and make the report available to all potential buyers so as to eliminate this as a condition of sale.
7. Establish the protocol for acceptance of offers and signing back counter-offers, such as only considering offers without any conditions.
8. Consult the listing agent (before being retained) for what repairs, improvements and staging, if any, are recommended and then negotiate the sharing of these expenses, either at the time incurred or at closing.
9. Maintain communication with the listing agent by monitoring the progress of sale, collecting feedback on the response from the showings and form an understanding of the possibility of competing offers.
10. Participate in the sale process by assisting the spouse to make an offer, reviewing any offers presented and advising on the signing back of any offers and counter-offers; this may involve a real estate lawyer to also advise on terms or conditions attached to the sale such as closing dates, pre-closing viewings, chattel inclusions and exclusions, adjustments and vacant possession.
Following these steps, the sale of a family home, even in the higher conflict divorce cases, could be achieved with much less cost and aggravation than caused by a court-ordered sale.
In the 2010 case of Dishman v. Dishman, the husband accepted an early retirement buyout from General Motors which had the effect of decreasing his income from approximately $85,000 to $38,000 per year.
The Dishmans were married for 20 years later. After they separated in 2000, a final order required Mr. Dishman to pay his wife $750 per month in spousal support.
Nine years later in 2009, when Mr. Dishman was 52 years, his employer General Motors announced that it was closing its plant where he worked for 28 years. He was offered an early retirement incentive. Mr. Dishman could have continued to work for a few more years. However, if General Motors went bankrupt before that date, then the offer would no longer be available. Mr. Dishman accepted the offer and retired on June 1, 2009.
To convince Madam Justice Nolan to terminate spousal support, Mr. Dishman explained that his pension with General Motors had already been equalized with his wife when they settled their affairs in 2001. Mrs. Dishman kept the matrimonial home. The amount owed by Mrs. Dishman to Mr. Dishman for his share of the matrimonial home was off-set by the value of Mr. Dishman’s pension at the time. In calculating the amount of Mr. Dishman’s pension at that time, the parties valued it based on a retirement age of 59 years, as opposed to the 52 years when he actually retired. Stated another way, Mrs. Dishman argued that a significant portion of her husband’s pension was not equalized at the time of the agreement or court order.
Madam Justice Nolan relied on a series of past decisions such as Moffatt v. Moffatt (2003) that established that where there is early retirement that will severely prejudice the recipient spouse, the court may assign income as though the person had not retired. The judge also considered Bullock v. Bullock (2007) which held that a support payor cannot choose to be voluntarily underemployed, whether by retirement or otherwise, and therefore avoid his or her spousal support payment obligations.
Her Honour found that Mr. Dishman’s retirement was considerably earlier than anticipated, and Mrs. Dishman had good reason to rely upon support being provided for several more years. She stated that there is no reason why Mr. Dishman might not and cannot be expected to seek new employment opportunities and that Mrs. Dishman was in need and had a limited ability to earn more income.
In conclusion, the court found that this was a long marriage, that spousal support was payable because Mrs. Dishman was in need and should not be expected to bear all of the negative financial consequences of Mr. Dishman’s early retirement and, accordingly, the spousal support payments of $750 per month were to continue until 2016.
The Ontario Court of Appeal in the May 21, 2003 decision of Wylie v. Leclair did not think so. In that case, the parties lived together from 1985 to 2000 and had two children. After they separated, they agreed to a shared custody arrangement, with the children living with each parent on alternate weeks. A trial was held on the issues of support and division of property. Regarding the division of property, the trial judge found that Mr. Wylie received the benefit of Ms. Leclair’s housekeeping and caregiving services during their relationship. The trial judge awarded Ms. Leclair $150,000, and calculated this amount based on an equalization of net family property—a calculation that is used when married spouses separate by calculating each spouse’s assets and liabilities at the date of marriage and the date of separation.
Mr. Wylie appealed the trial judge’s decision to the Ontario Court of Appeal. The appellate court felt that the trial judge was wrong in attempting to provide an equalization of net family property for a common law couple.
When married spouses separate, it is necessary to equalize the parties’ net family property. However, this is not the law in common law relationships. The appellate court felt that the trial judge was attempting to adjust the law to provide for an equalization of net family property for common law spouses while there is no legal authority or presumption to do so.
The appellate court did consider the fact that Mr. Wylie received the benefit of Ms. Leclair’s housekeeping and caregiving services during their relationship, but also considered that Ms. Leclair lived rent-free for the duration of their 15-year relationship.
The appellate court reduced Ms. Leclair’s award to $70,000.
The old adage “a dollar save is a dollar earned” leads to the real question of how to minimize the financial cost of a divorce.
Here are 2 simple tips:
1) Prove it. You can’t deduct what you can’t prove. This applies to all assets that you owned when you got married and any assets that you accumulated from gifts and inheritances during marriage. You also will need to prove any debts that you have at separation if you want to deduct them. If you can’t prove the assets you owned at marriage, any assets from gifts and inheritances during marriage and any debts existing at separation, you will be parting with much more of your money at separation. Conversely, you need to uncover and prove your spouse’s debts at marriage and assets at separation. These figures too will either increase what your spouse pays you or what you collect from your spouse. So in conclusion, keep good records. This includes all of your tax returns and monthly bank, investment and credit card statements. A home video of your possessions at marriage can be very useful.
2) Be informed. Education is power and power is valuable. Meet with a Family lawyer to know your rights and obligations resulting from cohabitation, marriage, children, death and divorce. Each event will trigger a different set of rights and obligations.
The unforeseen financial consequences of divorce can be avoided or diminished with knowledge and planning.
Mediation is a process whereby the spouses jointly retain a professional mediator to help them reach an agreement that they are both comfortable with. Usually, only the spouses, without their lawyers, will meet with the mediator. The role of the mediator is to help the spouses arrive at their own agreement. The mediator’s role is not to give an opinion or force one spouse to accept the other spouse’s terms. It is certainly not the role of the mediator to give legal advice.
Even when the spouses decide to mediate their issues, it is most advisable for each spouse to have a lawyer provide him or her with legal advice.
Other than mediation and litigation, other methods that are available to settle the outstanding issues are neutral evaluation, arbitration and mediation/arbitration. An arbitration is a process similar to litigation. The arbitrator hears the evidence of each spouse, and the arguments made by each spouse’s lawyer, and then delivers a written decision that is as enforceable as a court order. An arbitration is a formal process conducted under the Arbitration Act which requires the arbitrator to comply with certain procedures. As opposed to the long wait to get a trial date in court, spouses who agree to submit to arbitration jointly select an arbitrator, sign an arbitration agreement and schedule a date for the hearing. Arbitration and the decision rendered by arbitrator are usually kept confidential. The cost of arbitration is either shared by the spouses or, if they wish to give the arbitrator the power to award costs, the arbitrator may order one spouse to pay the other spouse’s costs of the arbitration.
Other than mediation and litigation, other methods that are available to settle the outstanding issues are neutral evaluation, arbitration and mediation/arbitration. Mediation/arbitration is a dispute resolution method that is a hybrid of mediation and arbitration. There is a debate as to the propriety of a professional acting as both a mediator (who does not give an opinion or decision) and an arbitrator (whose only role is to give a decision). Mediation/arbitration is prohibited by the Arbitration Act, however, the spouses may specifically waive that prohibition. In mediation/arbitration, the mediator/arbitrator first attempts to settle the issues through mediation. Mediation may turn into arbitration if the mediator/arbitrator determines that mediation has failed. The mediator/arbitrator then ignores all the information that had been exchanged in the mediation and hears the matter afresh as an arbitration. The mediator/arbitrator cannot mediate while he or she is arbitrating and cannot arbitrate while he or she is mediating.
Other than mediation and litigation, other methods that are available to settle the outstanding issues are neutral evaluation, arbitration and mediation/arbitration. Neutral evaluation is a process whereby the spouses jointly retain a professional evaluator, who is usually an experienced family lawyer, to provide a formal opinion of the probable outcome of the issues presented to the evaluator. This process usually involves the participation of the spouses and their lawyers. The lawyers present the evaluator with a brief that consists of each spouse’s position, the relevant evidence and the legal authorities that he or she relies on. The purpose of neutral evaluation is to assist the spouses and their lawyers to overcome an issue that prevents the case from moving forward. For example, one spouse may believe that spousal support should be paid for a period of no more than five years, while the other spouse believes that spousal support payments should not end. In neutral evaluation, unlike mediation, the evaluator is specifically retained to provide an opinion and the reasons for that opinion.
This new concept originated in California. It is based on the idea that an increasing number of separating spouses want to settle their issues with the use of professionals in an inexpensive, amicable and respectful manner. Each spouse retains a family lawyer who is specially trained in collaborative family law. The spouses and their lawyers conduct a series of meetings to negotiate a resolution of the issues. The process is similar to mediation, however, in collaborative family law, if the negotiations are unsuccessful and litigation occurs, neither family lawyer can continue to represent the spouse in court and must withdraw from the case. This limitation is expected to encourage the spouses and their lawyers to use their best efforts in a productive, fair and focused manner to arrive at a resolution so that litigation is unnecessary. It is anticipated that spouses will be more committed and invested in the process to make the negotiations successful and arrive at a favourable outcome.
A dispute resolution officer (DRO) is a lawyer who is a member in good standing of the Law Society of Upper Canada, has practiced primarily in the field of family law for a minimum of ten years, and has been appointed to assist the judges and the court system. At Toronto’s divorce court—the Ontario Superior Court of Justice, the DRO meets with separated spouses before their case proceeds to a hearing before a judge to attempt to resolve their case, or at least to narrowly define the issues and create a timetable to proceed to a hearing.
DRO’s are typically involved in cases where one spouse is applying to the court to change a child support order or to change the parenting plan. The programme has been very successful. Approximately two-thirds of the cases are settled by the DRO without proceeding before a judge. Those cases that do proceed to a hearing before a judge have benefited by the DRO assisting the parties in defining the issues and ensuring that the proper evidence is submitted to the judge.
A Parenting Coordinator (‘PC’) helps separated parents resolve parenting disagreements. PC’s are usually social workers and psychologists, although there are a growing number of lawyers now working as PC’s. PC’s receive their authority from a Parenting Plan, Separation Agreement, Court Order or Arbitral Award. That is, the types of disputes that PC’s resolve relate to the implementation of a parenting schedule – not the creation of such a schedule. That is why section 59.7(2) of the Family Law Act refers to this service as a ‘secondary arbitration’. By definition, a secondary arbitration “means a family arbitration that is conducted in accordance with a separation agreement, a court order or a family arbitration award that provides for the arbitration of possible future disputes relating to the ongoing management or implementation of the agreement, order or award.”
Before arbitration is invoked, PC’s use a variety of tools to help parents solve their disagreements ranging from parent education, to coaching, to mediation. Only if the parents still cannot agree upon a solution, do PC’s resort to arbitration. That is, PC’s have the power to arbitrate parenting disputes, but usually after education and mediation have failed. The idea is that the PC attempts to enable the parents to problem-solve and develop the skills to better communicate and arrive at mutual decisions regarding their children. However, if such efforts have been exhausted, the PC renders an arbitral decision, which must be followed by the parents, as if ordered by a judge.
The implementation of Parenting Coordination varies among jurisdictions. In Ontario, a judge cannot order parties to use a Parenting Coordinator, as that would constitute a delegation of authority. The consent of both parties is required.
In 2012, the Ontario Court of Justice in Sehota v. Sehota  O.J. No. 835, took judicial notice of PC’s and specifically the 2005 Guidelines for Parenting Coordination, which were produced by the Association of Family and Conciliation Courts.
The court stated:
The Guidelines suggest that the Parenting Coordinator has considerable authority, albeit about only minor issues. A list of the types of issues that might be addressed by a Parenting Coordinator is as follows:
Parenting Coordinators have become a critical component of matrimonial law, post-separation family counseling and dispute resolution. Family court judges value the work of such professionals for their help in easing many of the difficulties parents face, in a manner that protects the interests of children.
PC’s help parents put their children’s interests first, help them understand how conflict hurts children and teach them how to communicate and cooperate so as to achieve the very best outcomes for children of divorce.
When a marriage ends, each spouse usually wants to resolve all outstanding issues as quickly and inexpensively as possible. But at the time of separation, there may be poor communication between the spouses. Although they may both want to resolve the same issues, they require a professional to assist them in arriving at terms that are fair and agreeable. A family mediator is a professional who will work with both spouses to facilitate a resolution of the issues that need to be resolved. Although many family mediators are lawyers by training, they do not represent either spouse. It is critical that each spouse retain a family lawyer to be advised of his or her rights (before and during the mediation process) and be provided with strategic advice. At the conclusion of a successful mediation, the spouses will have arrived at terms of settlement that can be incorporated into a separation agreement. This is prepared by one spouse’s lawyer for review and consideration by the other spouse’s lawyer.
Before mediation begins, the spouses will decide whether the mediation will be open or closed. In open mediation, the mediator may be asked by either spouse to write a full report on what happened during the mediation including the reasons why it was not successful. If the mediation is not successful and the case proceeds to court, the report may be considered by the judge. Also, the mediator may be required by either spouse to testify in court. In closed mediation, the information exchanged by the spouses is confidential. The mediator’s report will only mention whether an agreement was reached, but will not provide any details of why an agreement was not reached. In closed mediation, neither spouse can compel the mediator to testify in court.
Family mediators operate as private businesses and are not regulated, therefore, their fees can vary. Some courts and community agencies offer mediation services for fees that are charged according to the spouses’ incomes. A family lawyer will be able to provide recommended names of family mediators and the availability of mediation services through the courts and community agencies.
The better the communication between the spouses, the more successful mediation can be, because the spouses will each actively participate in the mediation process. However, when the spouses are unable to deal directly with each other, mediation can still be useful. In this case, the mediator may start by meeting with both spouses to discuss the objectives of the mediation and then separate them so the mediator can meet with one spouse at a time, in different rooms. The mediator can then shuttle between the two spouses to mediate an agreement.
Let’s be honest… Separating spouses are not running to line up for any process to commemorate the death of their relationship. The separating spouse is usually in pain, angry, confused, scared and hopeless.
She is wanting to run away from the ruins of her marriage. She is not volunteering for anything at this stage of her life.
As an aside, the most satisfied client of mine, after thanking me for providing them with excellent and compassionate legal representation, follows the compliment with “I hope I never need to use you again.”
When we use the term ‘voluntary’ we must recount the context… not from our perspective (we meet hundreds of separating spouses, whereas the client meets one Family law lawyer and we are in and out of courthouses almost daily, which does not cause us anxiety, whereas the very presence of a separating spouse in a courthouse causes tremendous stress and anxiety for her), but from the perspective of the client who never planned for this, wishes the pain would stop and feels helpless.
Can a person in this emotional state really be acting with volition and intent ?
When a spouse finds herself in this situation, she speaks to her friends and family, makes inquiries of what to do next and, eventually, lands in the office of a professional (therapist, lawyer and/or mediator) who guides her to the next step.
When this person ‘volunteers’ for mediation as a ‘process’, she is usually choosing the least of all poisons. The other alternatives are not available (reconciliation), not affordable (litigation) or impractical (doing nothing).
Another way to look at it stems from my observations on Wednesdays at the Family Court of the Superior Court of Justice in Newmarket. Wednesdays is motions day. Between 30 to 50 motions are on the docket each Wednesday. There is no limit placed on this list. There is no case management. There is no planning. It’s a free for all. Each Wednesday, separating spouses and counsel line up at 10:00 a.m. to seek judicial intervention. There is a problem in the lives of these spouses. They could not resolve them. Their lawyers could not resolve them. They are nervous, worried and anxious…but hopeful. They hope that the motions’ judge will hear their problem and declare a solution.
That can’t happen. Why ?
One motions’ judge cannot solve 30-50 domestic problems between 10:00 a.m. and 4:00 p.m. S/he may be able to help a few families. This of course starts after those spouses who have given up, failed to confirm their court attendance in advance, failed to attend court that day or have already resolved their dispute, are managed by the court. This usually takes 30 to 90 minutes. That is when the motions’ judge announces that the remaining time in the day is not adequate to help the many remaining spouses in waiting.
Now for the notion of ‘volunteering for mediation’.
The motions’ judge announces that this court location offers mediation services. It is free and available. The judge reminds everyone that, regrettably, s/he cannot help most of those in the room.
So the spouses and counsel, in utter disappointment, consider the alternatives (leaving court with no solution, coming back next Wednesday and hoping to be heard, booking a fixed motion date in 4 months or… ‘volunteering for mediation’).
It is arguable that in these situations a person is acting under duress or desperation when opting for mediation.
Don’t get me wrong. Mediation may be the very best option for this family. It may preserve the relationship… ensure mutual respect… permit the discovery of a cooperative solution… end the conflict… and save money.
But I query whether mediation was voluntary.
Before a spouse can decide upon the process, he should obtain legal advice to determine what his family law rights and obligations are. This is very important because the next few steps that he takes can permanently affect the outcome of his case and the legal obligations that he will assume. At this critical stage, each spouse should immediately obtain legal advise from an experienced family lawyer.
Once the issues that need to be settled are identified and each spouse has obtained legal advice, the spouses may negotiate, mediate, litigate or arbitrate the outstanding issues. That is, the spouses may negotiate an agreement amongst themselves or instruct their lawyers to negotiate an agreement on their behalf. The spouses may agree to retain a mediator to assist them in reaching an agreement, or one spouse may decide that it is necessary to obtain a court order and therefore, decide to litigate. Alternatively, the spouses may decide to submit their issues to binding arbitration.
The spouse who starts the court proceeding is called the petitioner or applicant. That spouse is the one who states what he or she wants the judge to grant and the reasons for it. The other spouse is called the respondent. He or she may either agree to some or all of the items claimed, deny and defend these claims and/or make a counterclaim against the other spouse.
No. A spouse may appear in court without a lawyer. However, it is not recommended. The court process is complex. It is based on rules of procedure, such as the Rules of Civil Procedure and the Family Law Rules. The relief sought is based on legislation such as the Family Law Act and the Children’s Law Reform Act. Family lawyers are educated, trained and licensed to represent spouses in court. Family lawyers are familiar with recent changes in the law and are familiar with the court process. It is critical to obtain legal advice and representation by a family lawyer when proceeding to court. If, however, a spouse decides not to retain a family lawyer, he or she will then be responsible for preparing, swearing, serving and filing all of the appropriate court documents. The spouse will also be required to make oral submissions to the judge.
A motion is a court procedure that is used to obtain certain types of orders from a judge. You can bring a motion to ask for an order to resolve an issue on a temporary basis or to change an order that has already been made. For example, a motion may be brought for an order determining support payments or visitation rights on a temporary basis until these issues are settled between the spouses or finally determined by a judge at a trial.
Under the Family Law Rules (Ontario), you can bring a motion only after you attend a case conference. However, there are some exceptions to this general rule. A motion can be brought before a case conference in situations of hardship or urgency (for example, if you need to apply for a restraining order because of immediate danger to the health and safety of you or your children), or if you need directions from a judge (for example, you may need to ask for a Judge’s permission to file an answer late if you have missed the deadline for filing).
If you bring a motion before a case conference, the judge will first decide whether your case fits within one of these exceptions. If the judge decides that it does not, your motion will only be heard after a case conference and you may be responsible for paying the other party’s costs.
Anyone who is a party to a case or anyone (other than a child) who is affected by the case, can bring a motion. The person who brings the motion is the moving party. The person who responds to the motion is the responding party.
In order to bring a motion, you must prepare, serve the other spouse with, and file in court, a notice of motion and sworn affidavit. The moving party must get a date for the motion from the court office and include this date in the notice of motion so that the other party is notified of the hearing date. After the other party is served with the notice of motion and sworn affidavit, a sworn affidavit of service must be filed in court to establish that the other party was served with the notice of motion and sworn affidavit. In most cases, you must attend before a judge to argue the motion. If the motion deals with financial issues such as support, then you must also prepare, serve and file a sworn financial statement. After all your documents are prepared, served and filed, the other party has the right to also serve and file a responding affidavit.
Before a judge will permit a spouse to change a prior court order or separation agreement, the spouse must prove that there has been a material change in circumstances since the time of the prior court order or separation agreement. If there has been a material change, then the spouse must convince a judge of what the new order should be.