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Posts from the ‘Divorce FAQs & Education Resources’ Category

New Joint Action Plan Announced for Improving Access to Family Law Services in Ontario

New Joint Action Plan Announced for Improving Access to Family Law Services in Ontario

The Law Society of Ontario has just announced its approval-in-principle of a joint action plan that is the culmination of a Family Legal Services Review commissioned last year in conjunction with the Ministry of the Attorney General.  The resulting Report makes 21 recommendations that are aimed at improving access to Family Law legal services, most notably by expanding the role of paralegals. Under the joint action plan being considered, the Law Society commits to the following:

  • To develop a license for licensed paralegals and others with appropriate training, to allow them to offer some Family Law legal services. The licence will support training on the topics of: legal process; completing Family Law forms, investigating certain financial information, Motions to Change, and uncontested divorces.  The Law Society indicates that training will be an intensive and rigorous process, of up to 14 months’ duration, along with testing.
  • To “engage in a robust evaluation of the success of the Family Law legal services license for service providers other than lawyers, and to make any adjustments that are in the public interest.”
  • To consider allowing lawyer candidates (e. articling students) to be given “experiential training” in the licensing process, including how they may support the delivery of Family Law legal services under appropriate supervision.
  • To review the Rules of Professional Conduct governing lawyers and paralegals, to see whether the current rules on the unauthorized practice of law are as clear as possible on the difference between legal information that is legal advice, versus legal information that might be provided by Court staff to unrepresented litigants. The intent is to effect a common-sense change to give Court staff more latitude to help self-represented litigants navigate the Family Law process.
  • To continue to support the expanded use of unbundled services and legal coaching, including offering Continuing Legal Education opportunities, as well as tools that address concerns over legal liability.

The Law Society indicates that it will also continue to assess what additional Family Law legal services (including advocacy in and out of the courtroom) should be made available by providers other than lawyers.   This again requires consideration of the public interest.

It should be noted as background to this newly-announced initiative, that the Law Society has also ramped up its lobbying efforts, in cooperation with the Bar, to encourage the Federal and Provincial governments to accelerate the implementation of Unified Family Courts to all jurisdiction in Ontario.  (Currently, there are only 17 Unified Family Courts are only available to litigants in the province, mostly in the greater Toronto region).

What are your thoughts on this new action plan?

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

 

If Only One Person Says “It’s Over”, Is It Really?

If Only One Person Says “It’s Over”, Is It Really?

Who gets to decide when a marriage or other relationship is over? Do both parties have to agree, in the eyes of the law?

That was one of the questions that the court had to ask in a case called Cammaroto Cammaroto.

The facts were a little unusual: The wife wanted out of the dead-end marriage but could not get the husband to leave, likely because he was very comfortable having her pay all the bills. He had never really worked throughout their 10-year marriage, and had not shown any real inclination to get a job. As the court described it:

[The wife] testified that she was trapped in the relationship for many years because she could not get [the husband] to leave and she could not afford to carry two residences making her (in her words) “a prisoner” in the matrimonial home.

The true end-date of the marriage was therefore challenging to pinpoint, and the spouses differed greatly on what that date actually was.

Naturally in a more typical marriage-breakdown scenario, the former partners usually decide to stop living together at some point, making it much easier to isolate the date the relationship has officially ended.   But where – as here – the couple continues to live under the same roof even after one or both of them consider the relationship to be over, the lines can get a little blurry.   It becomes harder to identify the true legal “separation date”.

To frame its determination on this issue, the court stated the law:

Marital relationships cover a broad spectrum and it is difficult to pinpoint when spouses become “separated” while under the same roof. There is no checklist or test that precisely articulates the determination of a valuation date in a case such as this, though courts have articulated factors to consider. It is a fact-driven inquiry in any particular case.

The absence of sexual relations is a factor but it is not conclusive. The degree to which spouses share or segregate income and expenses is important, particularly changes in those arrangements. Communication, social life, interactions with one another in public and behind closed doors all need to be considered. Mutual goals and expectations are relevant. The goal under the Family Law Act‘s property provision is to fix a date on which the economic partnership should as a matter of fairness be terminated. The global question is when it was that the parties knew, or reasonably ought to have known, their spousal relationship was over and would not resume.

On the question of whether one person can unilaterally decide that the marriage is over, the court was unequivocal:

Continuation of a marital relationship requires two people. Either spouse can unilaterally end that relationship without the consent of the other. There are many cases where one spouse knows there will be no reconciliation, but the other may not know. At the same time, the court must be careful to look for some objective evidence upon which to find a date of separation, rather than simply accepting the after-the-fact statements of the party who has decided the relationship is over.

Applying this test to the specific facts in Cammarato, the court found that the relationship had ended a full five years before the couple stopped living together. The court described the marital scene:

By 2005, they ceased to have a sexual or otherwise intimate relationship. Communication between them was largely by notes to one another. They had no social life to speak of. [The husband] had no friends and as a couple they had no mutual friends. Moreover, he objected to and interfered with [the wife’s] association with her own friends and even with her two sons. They had a joint bank account but only [the wife] was putting money into this account after 2006. [The wife’s] description of their relationship is corroborated in some respects by [her doctor’s] notes and the records of the police interventions.

In these circumstances, the court found the marriage was over long before the spouses moved out and went their separate ways. It set the separation date accordingly, for valuing the spouses’ respective assets for equalization.

For the full text of the decision, see:

Cammaroto v Cammaroto, 2015 ONSC 3968 (CanLII)

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

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Wednesday’s Video Clip: When Can A Parent Apply For Child Support

Wednesday’s Video Clip: When Can A Parent Apply For Child Support

In this video we discuss how parents who have their children living with them after separation can apply for child support at any time. Usually they apply right after they separate or as part of their divorce application. They often apply for custody and child support at the same time. It is usually best to deal with these matters as early as possible. Sometimes parents with custody do not want or need child support at first, but later their situation changes.

They can apply for child support when the need occurs, even after a divorce and all other matters arising from the separation have been settled. But if a step-parent is asked to pay support, the more time that has passed since the step-parent had an ongoing relationship with the child, the less likely it is that the court will order support payments. This is especially true if the step-parent’s social and emotional relationship with the child has ended. A parent can apply for custody and support even while living separately under the same roof after their relationship with the other parent is over. But usually the court will not make any order for custody and support until one parent has actually moved out.

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

Would You Give Your Ex Your Facebook Password?

Would You Give Your Ex Your Facebook Password?

Perhaps it’s human nature, but most people who go through a marital separation or divorce will do their best to limit the information that their now-former spouses are privy to, when it comes to their post-split personal lives. In fact, common relationship and break-up advice suggests that former spouses should actively and immediately “block” each other from social media sites like Facebook, so that neither can have glimpse at what the other is doing after the split.

Part of it arises from privacy concerns, but part of it may arise from a sense of protectiveness around giving the other person “dirt” that they can use in any Family proceedings that are later sparked by the breakdown of the relationship.

As I have written numerous times in the past, when former spouses are embroiled in litigation to untangle their financial affairs, and to deal with the custody of and access to any children, their respective posts on Facebook can inadvertently become the source of evidence.

So it may come as a surprise that a few years ago a judge in Connecticut ordered a former couple to divulge their Facebook, eHarmony and Match.com passwords to each other during their divorce proceedings. The judge had granted the order based on the husband’s evidence that the wife’s Facebook posts and photos raised issues about her ability to care for their children.   When the wife relinquished her password but then arranged for a friend to start deleting any incriminating posts, the judge added an injunction to prevent her from doing so.

The judge’s order also enjoined either spouse from “visit[ing] the website of the other’s social network and posting messages purporting to be the other.”

It’s an unusual ruling, and one that will give many people pause:

Would you really want a former romantic partner to have access to your Facebook or dating site passwords?

What are your thoughts?

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

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Wednesday’s Video Clip: Child Support & Parents on Social Assistance


Wednesday’s Video Clip: Child Support & Parents on Social Assistance

Parents on social assistance who have custody of their children must make reasonable efforts to get support from the other parent. If they do not, they may receive less assistance, or none at all. If they do not already have a support agreement or order, they are expected to get one. They must give information about the other parent to a family support worker who can help them get a support agreement or order.

They should get legal advice before signing any agreement worked out on their behalf.

They may not have to try to get support if the other parent:

• has a history of violence towards them or their child

• cannot be found (but they must give their worker any information they have that might help find the other parent),

• or is not working and cannot afford to pay support (if he or she starts working again, then support can be re-ordered).

The amount of any child support they receive is deducted from their social assistance. So, their total income does not change because of the child support.

Usually, the payments go directly to them, and that same amount is deducted from their monthly social assistance cheque. But if there is a history of non-payment, the child support payments can be assigned to Ontario Works (OW) or the Ontario Disability Support Program (ODSP). Then they will get their whole social assistance cheque, even when the support payments are not paid.

Parents on social assistance who do not have custody are expected to pay child support to the extent that they can, as set out in the Child Support Guidelines. Currently, the Guidelines do not require support payments from parents whose income is less than about $6,700 a year.

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

Can the Court Decide to Hear New Evidence After-the-Fact?

Can the Court Decide to Hear New Evidence After-the-Fact?

A recent Ontario decision raises the interesting procedural issue of whether a court has the authority to admit new evidence even after it has concluded hearing a Family Law matter.

The litigation involved competing motions by a father and a daughter. The daughter asked for the court to order the father to pay temporary child support, and the father resisted, asking the court for certain orders to be made in his favour instead. The court heard the motions, but reserved judgment on both.

Then, a week later, the father returned to court to try and provide new evidence that the company he controlled had been ordered into receivership – presumably to show that he could not afford to pay the daughter temporary support she sought. His evidence took the form of the copy of an order by another judge, in another court, simply declaring the father’s company was receivership; there was no other detail provided.

The court first had to consider the broader legal question whether it had the authority to allow the father to bring new evidence, even after the original motions had been heard. If so, then the court was still obliged to consider whether that authority should be exercised respecting the father’s new evidence in this particular case.

On that last point, the court summarized the task at hand:

The deeper issue that I am called upon to consider is whether [the father] has provided sufficient evidence to show that the motions should be reopened, and if so, on what terms?

After reviewing basic judicial principles, the court ultimately found that it did have the authority to re-open the argument, but that the father had not met the test to justify the court doing so in this case.

The court’s threshold determination was whether it had fulfilled its official function on the earlier motions; if so, the door was closed for any further evidence to be received. The legal term is “functus officio”, which is defined as “having discharged one’s duty” or as “a task performed.”

As it happened, in this case the judge had not yet issued a ruling, let alone granted any order that had formally been entered with the court. So the judge was not “functus officio” in this particular instance.

Next, the court also examined the Family Law Rules, to see whether it might prohibit the father’s evidence from being tendered at this relatively late stage. The purpose of the Rules, the court found, was to deal with cases in a just and fair manner; they included provisions specifically built-in allowing for flexibility and fairness. In the right circumstances, the Rules did allow further evidence to be filed even after the argument of the motion had been concluded.

With that said, the judge’s discretion was to be exercised “sparingly and with the greatest care”, although a “somewhat relaxed approach” could be applied in cases where the matter had been heard, but a decision had not yet been released. This was one of those cases.

Still, the admission of evidence was to be the exception, rather than the rule. Otherwise, it would be tantamount to inviting the parties to first hear argument and judicial comment on the evidence thus far, and then put together further evidence tailored to buttress their case.

In this case the father had not met the requisite test. As the court said:

While the test is more relaxed than it would be after a decision had been released the admission of that evidence is far from automatic. Here [the father] fails to meet even a relaxed test for admission.

The father had neither direct evidence nor any submissions to explain why the late-breaking receivership order, relating to a company that he held a 60% interest in, might affect either of the motions the court had already heard. He merely proffered a copy of a prior court order putting his company into receivership, but without explaining how it might affect his income.

The court said:

While the bar … is a low one, [the father’s] materials fail to clear even it.

The court declined to grant the order, and dismissed the father’s motion to introduce new evidence.

For the full text of the decision, see:

Glegg v. Glegg, 2017 ONCJ 102 (CanLII)

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

Court Finds Husband Just “Going Through the Motions” on His Job Search

Court Finds Husband Just “Going Through the Motions” on His Job Search

One of the basic principles underpinning Ontario family law, is that the parties must behave with good faith towards each other in when participating in the separation and divorce process. And courts are wary – and frequently critical – of spouses who do not behave this way.

This is illustrated in the decision in Cammaroto v. Cammaroto. There, the couple had married in 2000 after a 2-year long distance relationship, with the 48-year-old husband moving from New York to be with the wife in Ontario. He had expected to easily find work in the retail travel industry, but this never panned out, and he began to drink heavily. Meanwhile the wife, aged 44, was working 12-hour shifts in her job as a nurse.

By 2008, the relationship deteriorated to the point where the husband communicated with the wife mainly by giving her notes and list. Still, the couple continued to live together under the same roof for several more years.

As part of their divorce proceedings, the court had to decide whether the husband should be entitled to spousal support from the wife, who had been supporting him for the entirety of their marriage.

To make this determination, the court had to consider the couple’s overall relationship. In the husband’s favour was the fact that he had moved from New York and left behind a secure job. But by 2006, which was 6 years into the marriage, he had made virtually no genuine effort to find work and the wife had clearly run out of patience. The court concluded that the husband’s failure had been “a very significant cause of the marriage break-down”, and that his alcohol consumption also contributed to it.

The court itemized the husband’s so-called efforts to find work in this manner:

Exhibit 29 records [the husband’s] attempts to find employment. It illustrates a wide ranging attempt at looking into potential jobs, even low level employment such as flyer deliveries, gas bar employment and entry level sales positions. It records a range of dozens of small local employers as well as large chains such as Walmart, Staples, Rogers, Canadian Tie, Home Depot, the LCBO, several hotel chains, Zellers and Leons.

The most impressive aspect of [the husband’s] attempts to find employment are the personalized and well-written cover letters that he sent with resumes or job applications. Superficially, the documentation of [the husband’s] employment search over the years 2000 – 2006 is impressive. However, on closer examination it is apparent that [the husband] was “going through the motions”, documenting many contacts from ads for jobs that he must have known he could not do or would not accept even if he could get a job interview. Some of the content of Exhibit 29 is clearly an attempt to “pad” his efforts to find employment. For example, it is rather silly to include employment as a flight attendant, a short-order cook, a store manager, etcetera. The actual number of job interviews he got over the years was few.

In 2001, [the husband] applied for 17 jobs in total, never more than three in any given month. He agreed on cross-examination that it was not a “diligent” job search that year. In 2002, he made one job application and in 2003, 31. He admitted on cross-examination that many of the “applications” were for jobs he could not do anyway. …

It is also hard to escape the inference that Mr. Cammaroto deliberately sabotaged the only successes he had.

He obtained a job in the travel industry in 2003 but quit the job after taking the initiative with U.S. authorities to check if he could be “in trouble” as a U.S. citizen selling trips to Cuba. He blew the whistle on himself. Then, when told it was not a problem to work for a travel agency selling trips to Cuba so long as he didn’t do so personally, he quit the job anyway.

He was hired as a security guard in December 2005 or January 2006 but quit that job before his first shift to take another travel agency job that lasted only a few weeks.

In April 2006 he was hired at Stock Transportation to drive autistic children in a van but quit during the training session because the children were “wild and noisy” and he was afraid he would crash the vehicle.

There are other examples of how he thwarted actual employment opportunities himself or wasted his time on obviously fruitless pursuits. It is hard to know whether he was genuinely interested in working or just kidding himself. He turned looking for a job and the documentation of his efforts into a job itself. By 2006 he had given up any real effort. Perhaps even before that.

The court also noted that by 2010, when he and the wife were still living together, he was actively looking for other relationships on Match.com under what he called his “contingency plan”. It ultimately concluded that the husband’s lack of genuine job-hunting had been deliberate:

[The husband] admitted that as early as 2008 he was aware of the “rule of 65” in the spousal support advisory guidelines, referencing the principle that if a dependent spouse’s age plus years of marriage equals or exceeds 65 then recommended spousal support should be for an “indefinite” duration.

It is clear from all the evidence that [the husband] was determined to delay the inevitable separation as long as possible to maximize his entitlement to support and not because there was any realistic hope, even in his own mind, that a true marital relationship would ever resume.

Still, the court observed that at the time of the trial, the husband had been out of the workforce for 15 years, and had depression, anxiety, and some other mental health issues that clearly pre-dated the marriage. In these circumstances, he was entitled to some time-limited support from the wife, who had the ability to pay from her $90,000 income as a nurse.

For the full text of the decision, see:

Cammaroto v. Cammaroto, 2015 ONSC 3968

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

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Wednesday’s Video Clip: How are Decisions Made About Custody in Ontario?


Wednesday’s Video Clip: How are Decisions Made About Custody in Ontario?

In this law video we talk about how decisions are made about custody of children.

Often, deciding on a parenting arrangement after a marriage is over is not easy. Under the Divorce Act one or both parents may have custody of the children.

If you cannot agree on a parenting arrangement, the divorce law sets out some basic principles that a judge must use when making decisions about children.

• The best interests of the children come first.
• Children should have as much contact as possible with both parents so long as this is in the children’s best interests.
• The past behaviour of a parent cannot be taken into consideration by the court unless that behaviour reflects on the person’s ability to act as a parent.
When deciding on the best interests of the child, the judge will take into account a number of factors including:
• Care arrangements before the separation. (Who looked after the child most of the time? Who took the child to the doctor and dentist? Who arranged extracurricular activities? Who dealt with the child’s school and teachers?)
• The parent-child relationship and bonding.
• Parenting abilities.
• The parents’ mental, physical and emotional health.
• The parents’ and the child’s schedules.
• Support systems (for example, help and involvement from grandparents and other close relatives).
• Sibling issues. Generally, brothers and sisters remain together, but under some circumstances it may be necessary to consider separating them.
• The child’s wishes. (There is no magic age at which a child has the right to decide where he or she is going to live. The court gives more weight to the child’s wishes as the child matures. An older teenager’s wishes will often be decisive.)

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

Serving Family Documents via Facebook?

Serving Family Documents via Facebook?

An otherwise-unremarkable Ontario family law decision called Filion v. Ives has an interesting feature: The court allowed one of the parties to use Facebook to serve court documents on the other.

In that case, the husband had used the universally-known social media platform to serve court documents on the wife as part of their acrimonious divorce proceedings. He chose this method because she had proven very difficult to locate in the past, in connection with numerous motions and settlement conferences over the years. She was now claiming that she was out of funds to hire a lawyer and had failed to show up at a scheduled hearing and costs were ordered against her.

On a motion to get clarification on the $28,000 that she had been ordered to pay the husband, who happened to be a corporate/commercial, real estate, and estates lawyer, served the documents on the wife by Facebook message and also by e-mail to give her notice of an upcoming hearing. The court described the circumstances that gave rise to this necessity as follows:

Service of the motion documents was effected on the [wife] on December 17, 2014 by Facebook message and by email. This is irregular. [The husband’s lawyer] explained that the [wife] would not cooperate to reveal her location and employers and family members could not or would not give her location. A process server had tried to serve the [wife] at the last address that the court had on file for her, but was unable to. A neighbour said that she had not been seen in six to seven months. She was thought to be in Sturgeon Falls or North Bay. However, the process server knew someone who the [wife] had responded to the Facebook messages of, indicating that she lived in Toronto, but not saying exactly where. [The husband’s lawyer’s] office had used the same Facebook address to message the [wife]. Also, there had been no response to the email to say that it had not gone through. [The husband’s lawyer] expressed confidence that service had been effected in this way.

The court noted that in limited circumstances, the Ontario Rules of Civil Procedure do allow for alternatives to service in circumstances where more traditional methods were ineffective/impractical. Here, the court was satisfied that the husband’s motion documents had come to the wife’s attention – or that they would have come to her attention had she not deliberately and actively evaded service.   To cover off the legal bases, the court made an order specifically endorsing the service of the husband’s documents in this way.

Although cases like this are still relatively novel, they suggest that Ontario courts might become increasingly comfortable with allowing this type of technology-based work-around in limited instances. Incidentally, another civil Small Claims Court case in which this approach was approved of is Eastview Properties Inc. v Wayne Mohamed.

For the full text of these decisions, see:

Filion v. Ives, 2015 ONSC 270

Eastview Properties Inc. v Wayne Mohamed, 2014 CanLII 52397 (ON SCSM)

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

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Wednesday’s Video Clip: How to Find More Information about Ontario Family Law

Wednesday’s Video Clip: How to Find More Information about Ontario Family Law

In this law video we review the different ways you can get more information about family law.

There are many professional people, organizations and other sources that can help you or provide information about family law issues, including:

1. An information centre specializing in family justice

2. A parent education course for separating parents

3. Duty counsel at a legal aid office

4. A community legal clinic

5. A university law school with a student-run legal information service

6. A law society or bar association referral service for a lawyer

7. A divorce support or self-help group

8. Relevant library books and videos

9. The yellow pages, white pages or blue pages in your telephone book have listings for
many of these resources, and

10. A librarian at your public library may also be able to help you.

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