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Posts from the ‘Collaborative Family Law’ Category

Top 5 Latin Terms You Should Know Before Going to Court


Latin terms are often used in the Court of law sans English translation or explanation. If the party to the ligation is not familiar with these terms, he/she may not fully understand what is going on in their own legal matter. These are the Top 5 Latin Terms You Should Know before attending your family law case in Court.

1. In loco parentis

“In the place of a parent”

This phrase is used to refer to a person or entity assuming the normal parental responsibilities for a minor child. It is often used in situations where there is a transfer of legal guardianship, or to refer to schools or other institutions that act in the place of the parents on a day-to-day basis.

 

2. Lex loci

“In the law of the place”

The term refers to the law of that particular country, state, or locality where the matter under litigation took place. It usually arises in connection with legal disputes that span multiple jurisdictions, for example where children have been removed from Canada by one parent and the issue arises as to which jurisdiction’s laws govern the situation (an area of law called “conflict of laws”).

 

3. Non est factum

“It is not my deed”

This term is more commonly used in contract law, but it can be applied in the context of separation agreements that have been reached between spouses or common law partners. It refers to an assertion by one signatory to a contract that the agreement is invalid on the basis that he or she signed unintentionally and without fully understanding its implications.

 

4. Parens Patriae

“Parent of the nation”

This term refers to the power of the State to act as parent to a child, in situations where the legal parents are unable or unwilling to do so. For example, when children are removed from their parents’ care in order to be cared for under the auspices of the Children’s Aid Society, such a step is achieved and authorized through the exercise of the Ontario government’s parens patriae authority.

 

5. Res judicata

“A matter judged”

A matter that is res judicata is one that has been adjudicated to the point of conclusion, meaning no further appeals or legal actions by the involved parties is permitted. For example, if divorcing parties have brought their claims for equalization of net family property to one court, and have had the matter heard and adjudged, then they cannot afterwards go judge-shopping to a different court for a different or better outcome on that particular aspect of their separation. Once their issues have all been heard (and leaving aside those legal matters that are eligible for applications to vary), the matter becomes res judicata.

 

Honorary Mention…

Inter vivos

“Between the living”

This term is used to refer to a gift or other non-sale transfer between living parties. For example, a gift by living parents to their children is called a gift inter vivos; this is distinct from a transfer made by Will, which takes effect upon the testator’s death.


This blog is an updated version of the original article published in 2012.

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At Russell Alexander Collaborative Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

We Are Now Seeking an Associate Family Lawyer

Russell Alexander Collaborative Family Lawyers is growing and we are seeking an Associate Family Lawyer to join our team! We practice exclusively in all areas of family law at multiple office locations in Ontario. We provide the opportunity to work remotely up to three days a week.

Job Type: Full-time

Salary: $150,000.00 – $200,000.00

Required skills and knowledge:
• Qualified to practice law in Ontario;
• Minimum of 3 years experience in Family Law and litigation;
• Interest and/or Certification in Collaborative Practice;
• Ability to work independently and in a team-environment;
• Strong and effective analytical and problem-solving skills, and excellent writing skills;
• Ability to engage in effective oral advocacy;
• Excellent organizational and time management skills, including attention to detail, and an ability to multi-task;
• High level of professionalism and initiative.

Responsibilities:
• Drafting legal documents, including but not limited to, pleadings, motions, affidavits, financial statements and conference briefs;
• Upkeep on all current client files, as well as bringing in new clients
• Delegating work to law clerks, and working closely with law clerks on files;
• Attending court.

Applications will be kept confidential. Please submit resume and cover letter to reception@russellalexander.com

Ajit Roopnarine Completes His Level II Collaborative Practice Training

Our Associate lawyer, Ajit Roopnarine, has completed his Level II of the Collaborative Practice Training organized by the Ontario Collaborative Law Federation (OCLF). This training supplements the Level I training that all lawyers wishing to practice collaboratively must complete. The training focuses on further developing expertise in interest based negotiations, client assessment and suitability, managing client expectations, strengthening communications tools and managing a Collaborative Practice case.

Congratulations Ajit on getting one step closer to becoming a collaborative practice family lawyer.

To learn more about the OCLF, click here

What is the Resolution Evolution – the Path to Peace?

What is the Resolution Evolution – the Path to Peace?

The Resolution Evolution – the Path to Peace is an OCLF/OAFM Conference and your opportunity to take advantage of world-class training close to home, to meet and network with other collaborative professionals, and to socialize with our professional colleagues.

The conference will run May 2, 3 & 4, 2019 at the Brookstreet Hotel, Ottawa, Ontario.

To register or learn more, click here.

Russell Alexander Collaborative Family Lawyers’ First Annual Holiday Toy Drive

Poster for Russell Alexander Collaborative Family Lawyers' Toy Drive

 

Russell Alexander Collaborative Family Lawyers are pleased to announce the start of their First Annual Holiday Toy Drive. This year the drive will be supporting Bethesda House located in the Durham Region and A Place Called Home located in The City of Kawartha Lakes.

New, unwrapped gift donations can be made in the Brooklin office for the Bethesda House. They have informed us of the lack of gifts for children 13-17 years of age. Some gift suggestions for them include:

  • Sports equipment
  • Art supplies
  • Games
  • Movie passes and gift cards
  • Purses and backpacks
  • Make-up, lotion, perfume
  • Hats and scarves

The Lindsay office is accepting new, unwrapped gifts to be donated for A Place Called Home. There is no recommended age for donations for this organization.

If you wish to donate to the toy drive this year, it will be running from November 1, 2018 through to December 7, 2018. You may drop by with your donation in the Brooklin or Lindsay office any time between 9:00 a.m. and 5:00 p.m. on Monday to Friday. For further details, feel free to give our office a call at 905-655-6335.

We are excited to be invited to speak at the IACP 19th Annual Networking and Educational Forum: Collaborative Creativity

 

Saving the Golden Goose: How Family Run Businesses Can Survive and Thrive after Divorce

We are excited to be invited to speak at the IACP 19th Annual Networking and Educational Forum: Collaborative Creativity. More than 450 lawyers, mental health professionals, financial professionals and other Collaborative practitioners from several countries are expected to attend the Forum at the Westin Seattle. The program runs from October 25, 2018 – 8:00am to October 28, 2018 – 12:00pm.

Our presentation will explore how a family business can be impacted when a Company ‘founder’ is involved in separation.  We will discuss:

• When both spouses are principals in the business

• When a second generation of the family joins the business.

• The effects on a range of stakeholders such as business partners and other investors.

• How spouses can cooperate to address the best interests of the children

• How spouses can agree to cooperate to address the best interests of the family business.

• Using, a collaborative approach to reduce the impact of separation and divorce on family run businesses.

• Ensuring that the business remains viable for both spouses, as well as future generations.

The IACP is the International Academy of Collaborative Professionals, an international community of legal, mental health and financial professionals working in concert to create client-centered processes for resolving conflict.

Get an in-depth look at Plenaries, PFIs, & Forum events, here. 
PFI & Workshop Descriptions are available here.

Click here to learn more.

We hope to see you there!

If You are Divorced in a Foreign Country, Can a Canadian Court Make Orders Too?

Image result for divorce

If You are Divorced in a Foreign Country, Can a Canadian Court Make Orders Too?

The facts in Cheng v. Liu are a little unusual, but the core question was this:

If a couple’s divorce is validly granted outside of Canada by a foreign court, does this preclude a Canadian court from later making any corollary orders – such as rulings on issues of support or custody – arising from that same divorce?

The husband, an engineer, was a Canadian citizen who lived in Canada.  The wife lived in China and had never been to Canada.  They got married in China in 2006 and had a daughter who lived with the wife in China her entire life.  They separated about a year after getting married, in around late 2007 or early 2008.

The wife then covered all the legal bases:  She applied in China for a divorce, and custody of their child.  She also applied in Canadian, under the federal Divorce Act, to ask for a divorce, as well as spousal support, child support, and custody.  Finally, also in Canada under the Ontario Family Law Act, she asked for equalization of net family property.

Meanwhile, the Chinese court granted the wife her divorce and awarded her sole custody of the child.  The wife’s other Ontario-based claims were still pending.

The husband, faced with all of these competing actions requiring his response, asked the Ontario court to suspend (or “stay”) the proceedings so that the entire matter could be determined in China.  This led to several rulings and some procedural wrangling, and ultimately a hearing before the Ontario Court of Appeal for its determination.

Against this complicated background the Ontario Court of Appeal had a simple question to consider:  In light of the Chinese divorce order, could a Canadian court make additional orders relating to child support, spousal support, and equalization of property?

The Court’s conclusion was mixed:  The divorce-related issues were closed for consideration, but the child support issues were still up for an Ontario Family court to rule on.

On the first point – and based on longstanding precedent that considered the provisions of the federal Divorce Act – the law states that once the foreign Chinese court had made a valid divorce order, this removes the authority of the Ontario court to hear and determine corollary matters.  So on the remaining divorce-related issues, the Ontario court had no authority.

However, the situation under the provincial Family Law Act was different:  the Ontario court could still rule on questions relating to child support, since the foreign court in China had not already done so in its divorce order.   The Family Law Act allowed child support claims to be made even after a divorce, and the foreign divorce order had no impact on that.  Indeed, the whole purpose for the Ontario legislation was to ensure that parents provide financial support for their dependent children.  Allowing the Ontario court to continuing to make orders under the Family Law Act even though the Divorce Act provisions had been trumped was actually a harmonious outcome to ensure child support would be covered.

For the full text of the decision, see:

Cheng v. Liu

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

 

A Day in the Life:  Court Uses “Ladder” Metaphor to Get Through to Firefighter Dad

Image result for firefighter bravery

A Day in the Life:  Court Uses “Ladder” Metaphor to Get Through to Firefighter Dad

In an upcoming blog about an Ontario court decision in which the court was tasked with sorting out a particularly acrimonious, high-conflict separation and divorce between couple.  The result was a written court ruling that took up more than 1,200 paragraphs.

Obviously, the court had quite a lot to say.  And what was especially noteworthy was the court’s attempt to “get through to” the parents in a manner that they will understand.

The court prefaces that unusually-lengthy ruling with the following comments:

In addition, of course, to the monies spent by the parties, there has been an incredible expenditure of community resources in an attempt to address the conflict this family faces.

The financial cost is just one aspect of the damage done to this family.

The emotional cost to the parties, and in particular to the children, is something that cannot be quantified.

This court heard fourteen days of trial.

This court, at the risk of being accused of being delusional or blinded by eternal optimism, has crafted a decision pursuant to which the court is optimistic that the respondent father’s mentality can be changed from one of “war” as it has been described until now, to one in which the objective is changed from “winning” and “destroying” the other parent to one in which the objective is to have an environment pursuant to which the children can be free to love both parents and can freely move back and forth between them willingly, happily and without the need for the intervention of any of the resources earlier referred to.

This court is not naïve and does not expect that that will occur overnight but on the other hand, this court believes that if it did not try to create that situation it would have let these children down and simply “given up” on them. This court is not prepared to do that.

The court’s next step was to comment on the approach taken by each of the parents throughout the protracted litigation, first to castigate the father, and then to laud the mother. About the father, the court used a metaphor that it hoped would resonate with the father, writing:

As will be seen in this judgment, this court has found that the respondent father has engaged in a “war” as two witnesses have indicated he characterized it at the beginning. The respondent of course denies that he said this but his actions speak far louder than any words that he could have uttered.

The respondent is an acting District Fire Chief and therefore the court has found it appropriate to use a word picture involving a ladder, being a piece of equipment associated with firefighting.

This court finds that the respondent has climbed a ladder and reached the top almost realizing his perceived goal. That goal was to have control over the children and to be in a situation where the mother of those children, being a mother whom he chose for them, was totally marginalized. He almost achieved that goal in that the children at their current ages have each expressed that they do not wish at the current time to have any meaningful relationship with their mother, nor to spend time with her on a regular basis.

This court hopes that the respondent father will see, as this court sees so clearly, that the wall that his ladder should have been against, and the wall that hopefully he will climb after he climbs down from this current ladder is one in which at the top of the wall is a situation whereby the children have a healthy relationship with both parents and can freely love each of them without feeling any guilt towards the other. Love is not a finite quantity pursuant to which if you give love to one of your parents you must take it away from the other. In fact, the children can also love the respondent father’s girlfriend as a “stepmother” without having to feel that by doing so they need to thereby not love their biological mother.

In contrast was the mother’s conduct throughout, which the court found was praise-worthy overall:

This court would be remiss if, in its summary of this case, it did not comment on the applicant mother. This court finds, as with any parent, the applicant mother is far from perfect. In fact, some of her actions, likely taken out of fear of losing her children, exacerbated the situation. This court finds that her parenting style is far more structured than that of the respondent father which “played into” his desire to alienate the children from their mother.

Having said that, the applicant mother has been subjected to not only emotionally abusive treatment from the respondent father and those under his “control” but emotionally and even physically abusive behavior from the children. The court does not “blame” the children as, there is an obvious reason why they are behaving in the manner in which they are behaving.

Many, and in fact probably most, mothers even those who deeply love their children would have “thrown in the towel” by now, but the applicant mother did not. That, this court finds, is not only to her credit but will be something that this court anticipates in years to come will be greatly appreciated by her children.

With that preface to the subsequent 1,200 paragraph’s worth of specific rulings designed to resolve the couple’s dispute, the court added – perhaps optimistically – that:

… this court has crafted a decision that it believes is one that could result in a 180° change being made in their lives from one of adversarial conflict between their parents, the extended families, and unfortunately the children themselves and their mother, to one in which they are allowed once again to “be children” and not have to constantly be concerned about the conflict between their parents.

The court’s stated objective is a good one, and it applies with equal pertinence to anyone embroiled in family litigation involving custody and access issues.

For the full text of the decision, see:

M.M.B. (V.) v C.M.V.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com