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More Calls for Reform in the Ontario Family Law System

More Calls for Reform in the Ontario Family Law System

While the Ontario government has heralded reforms to streamline the family law system, a new Law Commission of Ontario (LCO) interim report is calling for additional measures.

The LCO, which is an independent organization that researches issues and recommends law reform measures to make the law accessible to all Ontario communities, has released an interim report recommending 39 different changes and reforms to the existing family law system. Many of these recommended changes are designed to increase access.

The interim report, titled “Best Practices at Family Justice System Entry Points: Needs of Users and Responses of Workers in the Justice System” emphasizes the need for litigants, especially those who are self-represented, to have ready access to entry-points to the legal system.

For example, the Ontario government currently provides Family Law Information Centres, which are located in various courthouses. However, the LCO suggests this choice of locale may limit accessibility, and recommends instead that such Information Centres be placed in more strategic locations, such as libraries, doctors’ offices, supermarkets and law firms. On the other hand, the LCO still acknowledges the need for personalized fact-to-face interaction for those who need information on legal services, but points out that this is not always available, because most Ontario Legal Clinics do not provide services in family law issues. As such, the LCO suggests that legal aid lawyers could be positioned in community centres (especially in rural areas with limited legal service); alternatively, the government could provide subsidies to those legal clinics that offer family law advice.

The LCO report also puts forth recommended changes to the Alternative Dispute Resolution aspect of family law, suggesting that the government establish and fund a court-wide network of Dispute Resolution Officers, and that it provide legal aid certificates to those low-income people who are willing to use non-judicial options for resolving their disputes.

Finally, the report makes several other recommendations for government-implemented changes, including:

• establishing early access to information through one basic brochure and one online website;

• providing increased legal aid for persons trying to negotiate an agreement or trying to mediate a family dispute;

• in the long term, providing family centres across the province which offer comprehensive family justice services at entry point level, close to people’s communities.

These suggested family law reforms are an adjunct to earlier recommendations by the LCO, which among other things has resulted in the implementation of advisory groups, consultations, and research papers. The present report will similarly be the subject of consultation with various stakeholders until April 30, 2012, after which time the LCO will begin the task of assimilating the received input and preparing a final report.

Russell Alexander Family Lawyers work exclusively on divorce law and family related matters, including custody, spousal support, child support, alimony and separation. We are located in Ontario, and serve the communities of Oshawa, Whitby, Pickering, Ajax, Markham, Brooklin, and City of Kawartha Lakes (Lindsay).

www.russellalexander.com

 

 

LinkedIn Ontario Divorce Lawyers

LinkedIn Ontario Divorce Lawyers

Ontario Divorce Lawyers is for lawyers and family law professionals practicing family law in Ontario, Canada.

Our goal is to provide a forum for professionals to exchange ideas, information and insight into practicing family law in Ontario and helping our clients with Divorce and related issues.

If you are a Ontario Divorce Lawyer or family law professional please consider joining our Professional Group on LinkedIn.

 

The Perils of Self-Representation on Family Law Matters

The Perils of Self-Representation on Family Law Matters

A new study, conducted by university law professors Nicholas Bala and Rachel Birnbaum, reveals that an upsurge in the number of self-represented litigants is creating significant difficulties in the Ontario family court system.

The study was based on an Internet-based survey of 325 family lawyers attending a Family Law Summit held by the Law Society of Upper Canada in June of 2011. The results showed a distinct increase in the number of self-represented parties in family matters brought before the court, with “inability to afford a lawyer” being the most predominant reason.

However – despite the common misperception that not hiring a lawyer will save costs – the lawyers participating in the study reported that when litigants on the opposing side of a family matter choose to represent themselves, the costs for the represented side tended to increase. They also reported that in their view, unrepresented litigants generally have worse legal outcomes in the case than if they had hired a lawyer to represent them.

The study reveals an area of growing concern for the justice system. Indeed, in an Ontario decision called Cicciarella v. Cicciarella, the court had occasion to address the adjustments that need to be made to accommodate the upswing in numbers of self-represented litigants. It wrote:

[36] The increase in the number of litigants who appear without legal representation can pose special challenges for busy trial judges. Leeway is allowed for a self-represented party, especially as it relates to procedural matters …

[37] While judges should afford an unrepresented litigant additional “leeway,” there is a line to be drawn, as our Court of Appeal enunciated in Davids v. Davids 1999 CanLII 9289 (ON C.A.), (1999), 125 O.A.C. 375 at para. 36 (C.A.). The judge cannot descend into the arena from the bench and advocate for the self-represented litigant …

[38] It is axiomatic that both sides are entitled to a fair trial. As Platana J. noted at para. 18 of Baziuk v. Dunwoody (1997), 13 C.P.C. (4th) 156 (Ont. C.J. (Gen. Div.):
The problem of unrepresented parties, who may not be familiar with law and procedure, is one which is facing courts today with an ever increasing frequency. Courts are mindful of a degree of understanding and appreciation which should appropriately be extended to such parties. However, notwithstanding the difficulty with such parties attempting to properly represent themselves, courts must also balance the issues of fairness and be mindful of both, or all parties. Issues of fairness of course must always be determined in accordance with accepted legal principles and the law which has developed. A sense of fairness and understanding granted to unrepresented parties ought never to extend to the degree where courts do not give effect to the existing law, or where the issue of fairness to an unrepresented litigant is permitted to override the rights of a defendant party.

The court went on to observe that, as a direct result of this increase in the number of self-represented Canadian litigants, in 2006 the Canadian Judicial Council adopted a “Statement of Principles on Self-represented Litigants and Accused Persons.” While the Statement of Principles is meant to be advisory in nature, it provides guidance to judges, court administrators, members of the Bar, legal aid organizations and government funding agencies in relation to self-represented persons. Among other things, it sets out the responsibilities of judges towards self-represented litigants and other parties, and emphasizes that judges are to do whatever is possible to provide a fair and impartial process, and to prevent an unfair disadvantage to self-represented persons. It underlines the point that, while a judge may choose to exercise some leeway in procedural matters, he or she must never slip into the role of advocate for the self-represented party.

Notwithstanding these measures, the decision by a litigant to represent him or herself is one that can be fraught with challenges and negative repercussions. Family cases tend to be complex, and their outcomes have a profound effect on the parties and their children. Therefore, any decision to proceed without competent legal representation in a family law matter should only be undertaken after carefully evaluating all of the considerations and possible ramifications.

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 www.RussellAlexander.com

For the full text of the judgment, see:

Cicciarella v. Cicciarella, 2009 CanLII 34988 (ON SCDC) http://bit.ly/o8gYmj

For a summary of the findings by the study’s authors, reference: http://bit.ly/ouTyYa

Can You Get Damages for “Emotional Distress” in Family Law?

Can You Get Damages for “Emotional Distress” in Family Law?

In Ontario at least, the answer to this question is “yes”, according to the 2009 court decision in McLean v. Danicic, in which a wife was awarded significant damages after her husband engaged in what the court called “a relentless campaign of harassment” against her after they separated. This included him sending her numerous harassing letters and intimidating photographs, and sending her a written threat that he would “personally put a bullet in her head”. His conduct had caused the wife to suffer considerable distress, acute anxiety, and fearfulness which required her to seek medical attention and take medication regularly.

Accordingly, as part of the separation and divorce process the wife asked the court to award her damages for pain and suffering or for harassment, claiming that the Ontario Family Law Act (the “FLA”) allowed for such an award in the right circumstances.

In considering the wife’s request, the Ontario Superior Court of Justice noted that historically there were only two specific situations in which such damages could be awarded under the FLA:

1) where a plaintiff loses a loved one because of the negligence or misconduct of the defendant, thereby losing the loved one’s services and/or companionship; and

2) where there is “assaultive behaviour” after a relationship breakdown.

The court further observed that in the second category of cases there is usually a criminal conviction for some sort of physical assault (and by definition a clear factual finding by a judge that the assault occurred).

Nonetheless – and even though it was not specifically requested by the wife – the court in McLean v. Danicic was willing to entertain a damages claim for harassment, more specifically in the form of the tort of “intentional infliction of mental suffering and emotional distress.” In order to prove such a tort, the following three elements must be present (as has been established in an earlier decision called Prinzo v. Baycrest Centre for Geriatric Care):

1) flagrant or outrageous conduct;

2) calculated to produce harm; and

3) resulting in a visible and provable illness.

Applying this test the wife was awarded $15,000 in damages, as a means of expressing “society’s outrage” at the husband’s conduct, and to compensate her for the losses she suffered. (The husband later appealed on an unrelated point, but was unsuccessful).

Despite the outcome in McLean v. Danicic, emotional distress damages will be awarded in every case, however. Two subsequent Ontario decisions from 2010 illustrate that the facts and circumstances will remain an important consideration in determining whether such damages are appropriate in any given situation.

In Druhan v. Druhan the court – after initially expressing doubt about its jurisdiction to award damages for mental distress at all – found no reason to award them in the case before it. According to that judgment, the mere fact that one of the parties to a family proceeding brings a motion, launches an appeal, responds to a motion with a cross-motion, or simply aggravates or distresses the other party, will not amount to “flagrant” or “outrageous” conduct under the relevant test.

Similarly in A.A. v. G.G., the court conceded that the mother’s conduct no doubt had a severe emotional impact on the father in the circumstances. However, it was unable to conclude that her conduct had resulted in the father suffering the required “provable illness”, since there was no medical evidence; indeed the court doubted whether the father had any illness at all.

Clearly, damages for emotional distress and mental suffering remain a distinct possibility in Ontario family law. But given the inherently volatile and distressing context of almost every family law proceeding, it will be interesting to see where the court will draw the line on culpable behaviour by separating and divorcing spouses.

The full text of these decisions can be found at:

McLean v. Danicic http://bit.ly/foSg1W appeal on other grounds dismissed

Prinzo v. Baycrest Centre for Geriatric Care http://bit.ly/gGuy60

Druhan v. Druhan http://bit.ly/gWM9hF

A.A. v. G.G http://bit.ly/hq9NYv

Further information about family law and family law court decisions can also be found on our website at www.russellalexander.com

Child Support: You Can’t Cut Out the Middle Man (or Woman)

Child Support: You Can’t Cut Out the Middle Man (or Woman)

In a recent decision the Ontario Superior Court of Justice has confirmed that – unless the parents agree otherwise – child support payments should paid to the parent who is entitled to the support, rather than to the child directly. This is true even in situations where the “child” of the marriage is really an adult (i.e. is over 18) but still lives at home and/or attends school and therefore remains dependant on the parents for support.

In Sareen v. Sareen, the parties had agreed in their separation agreement that the father would pay $175 per month into an R.E.S.P. for the benefit of their daughter, and would pay $129 per month towards the premiums for her life insurance. However, once the daughter reached the age of 18, the father stopped making payments into the R.E.S.P., and began paying $150 per month to the daughter directly.

The parties asked the court to decide, among other things, whether it was appropriate for the father to be paying the daughter’s child support directly to her, rather than to the mother.

The court found that it was not. First of all, the court could find no legal authority to support the idea that once a child turns 18, he or she is entitled to receive child support payments directly. Instead, it considered various factors such as a desire to keep children out of their parents’ child support arrangements and disputes, and the overall objective of maintaining certainty in family law.

With these factors in mind, the court decided that even though the daughter was over 18, the mother was still entitled to receive the child support payments on her behalf and still had discretion to determine how the money was to be spent for the daughter’s benefit. Having the father pay the mother directly was the best way to decrease the likelihood of conflict and increase the level of security for the daughter, the court concluded.

In the end, the father was forced to pay child support to the mother for his daughter’s benefit, and was not credited with any previous payments that he had already made to his daughter directly. He was also ordered to pay significant arrears.

The Sareen v. Sareen decision is available at http://bit.ly/efqAtp

Further family law court decisions can also be found on our website at http://bit.ly/eJmpsx

Custody Disputes and the Role of the Office of the Children’s Lawyer

Custody Disputes and the Role of the Office of the Children’s Lawyer

In family law custody matters, the function of the provincial Office of the Children’s Lawyer (OCL) is to report back to the Ontario Superior Court with its determinations relating to the best interests of children. As such, the OCL has the important role of ensuring that children are given independent legal representation in connection with custody disputes that involve them.

However, the Ontario Court of Appeal has recently held that while a Superior Court can request the OCL’s involvement, that court has no jurisdiction to order it.

In a case called Bhajan v. Bhajan, the lower court had mandated the OCL to act in six separate custody disputes before it, relying on the general inherent jurisdiction of all Canadian courts to protect and make decisions for children and other individuals who are similarly incapable of doing so in the legal sense.

In hearing the appeal from that decision, the Ontario Court of Appeal reviewed a wide range of sources, including the legislation governing the general jurisdiction of family courts, various federal and provincial Acts and Rules that govern family matters, and even the values behind the United Nations Convention on the Rights of the Child to which Canada is a signatory. It concluded that although the Superior Court has the right to request the OCL’s involvement in family custody matters, the OCL retains the discretion to decline to act. In such cases, the court may only ask the OCL to reconsider its refusal or to consider other alternatives.

The Court of Appeal’s judgment is framed against the backdrop of the already-staggering case load of the OCL, which entertains a large number of requests from Ontario family courts dealing with matters governed by both provincial and federal legislation. Indeed, in making its decision the Appeal Court considered the OCL’s submission that to allow courts to force the OCL’s participation by way of court order would open a “floodgate” in terms of workload, and would render the OCL unable to function properly.

Read the Court of Appeal’s full decision in Bhajan v. Bhajan at http://bit.ly/fEV1TQ

10 Things You Should Know About Child Support

The parent with custody of a child has the main responsibility for the day-to-day care of the child and has most of the ordinary expenses of raising the child. The other parent should help with those expenses by paying money to the parent with custody. This is called child support.

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Divorce Made Easy?

Proposed changes to Divorce in Ontario are aimed at making the system easier and more affordable.

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Prenupt May Not Shield Against Temporary Support Order

Court orders husband to wife support despite the existence of a prenuptual agreement.

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How To Divide Family Property

A discussion of how separated spouse divide family property

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