Time for Ontario to update its approach to pets in divorce
By Giovanna Cacciola
Pets are more than just property, and it’s time Ontario’s Family Law Act said so.
As one of many pet lovers in our office, it always pains me to explain to clients worried about the fate of their pets following a separation that when it comes to Ontario family law, their cats and dogs are considered personal property.
I think it’s time to move on from this idea that pets should be lumped in with items such as the family car, sofas and other furniture. The new family law legislation out of B.C. could provide legislators in this province with a roadmap to a legal regime that better reflects societal attitudes towards our animals and the bonds that family members share with their pets.
The state of animal law in Canada
Judges across the country have traditionally taken a dim view of pet custody disputes. The Court of Appeal for Ontario is no different, as you can tell from its 2005 judgment in Warnica v. Gering that still sets the standard in the area. The three-judge panel in the case upheld a motion judge’s conclusion that a request for a custody order concerning a dog should be dismissed because it was “a waste of time, a nuisance or an abuse of the court’s process.”
As recently as 2016, a Saskatchewan judge issued a similar rejection of the custody approach when deciding the fate of the family dogs in a case known as Henerson v. Henderson. Comparing the pets to the family butter knives, the judge wrote that it would be “wasteful” to consume “scarce judicial resources with this matter.”
“After all is said and done, a dog is a dog. At law it is property, a domesticated animal that is owned,” he
added.
In recent years, judges in several jurisdictions have adopted a slightly more nuanced approach to the pet’s living arrangements following a separation, albeit one still premised on the idea that the pet is the personal property of one or both parties.
In 2018, Newfoundland and Labrador Appeal Court Justice Lois Hoegg issued a dissenting opinion in Baker v Harmina, favouring a woman’s argument that she was joint owner of a dog on the basis that she had been its primary caregiver, even though it was her former boyfriend who had arranged and paid for the dog’s purchase, as well as most of the expenses associated with the pet.
In 2021, an Ontario judge got in on the act, declaring the couple in Coates v. Dickson joint owners of two dogs based on a “broader, more contemporary approach” that takes into consideration several factors relating to each person’s relationship with the pets, rather than a simple assessment of who paid for them.
B.C.’s fresh take on pets in divorce
In B.C., legislators have made a cleaner break from the traditional “pets-as-property” approach to pet custody in recent amendments to the province’s Family Law Act. The updated legislation means pets are no longer considered property, but reclassified as “companion animals.”
Judges hearing divorce and separation matters under the amended Act must assess the pets’ best interest when deciding where it will live, taking into account the previous pattern of care for the animal, as well as its relationship with other members of the family, such as any children of the couple.
Time for Ontario to catch up
I understand courts’ unwillingness to add another layer of complexity to family law disputes, especially in our already over-burdened justice system. Still, I think the current state of the law in Ontario is out of step with the views of most people living with animals, who tend to view their pets as part of the family.
As the law continues to evolve in this area, I would like to see Ontario following B.C.’s lead by scrapping the outdated notion that pets are nothing more than property.
Legislators in this province may even wish to consider filling in gaps identified by animal advocates in the B.C. legislation, which does not cover guide dogs, service dogs or farm animals. In addition, B.C.’s updated law limits the court’s powers on shared ownership, allowing judges only to uphold previously agreed shared or exclusive ownership agreements, but not to order new ones.
If you are going through a separation and divorce with pets in the mix and would like legal advice on your situation, please reach out to schedule a consultation and we can go over all the issues together.
Navigating family court in Ontario: A three-step guide for self-represented litigants
By Giovanna Cacciola
Negotiating a family law matter is tough enough when you have legal representation from a qualified lawyer. I can only imagine what a struggle it must be for a layperson getting their first taste of the justice system at the same time as they are dealing with the fallout from a relationship breakdown.
In an ideal world, every person who needs a lawyer would be able to hire one to guide them through the maze of our family justice system, leaving them free to concentrate on the emotional toll of their separation or divorce. But I have been in this business long enough to know that a full-service retainer with a family lawyer is not a realistic option for everyone.
If you have decided to go it alone, it can be difficult to know where to start, so to help you, here is my three-step guide to family law as a self-rep.
Step 1: Find free help
Just because you’re not hiring a lawyer doesn’t mean you have to forgo legal advice entirely. Elusive as they may sound, there are a few free sources of family law help.
For example, the Law Society of Ontario runs a lawyer referral service to connect lawyers with potential clients. Legal professionals on the LSO service generally offer a free consultation of up to 30 minutes, which should be enough time to set out your situation and get some idea of your legal rights and options, even if you don’t ultimately decide to hire the lawyer you speak with.
When you eventually make it to court for an appearance before a judge, it may be worth arriving early as there is usually a legal aid or volunteer lawyer — known as duty counsel — on call at the courthouse to assist self-represented litigants before they head into a hearing. In some cases, the duty counsel may even be able to speak to the judge on your behalf, but you shouldn’t bank on someone being available as they are in high demand.
Everyone benefits if litigants can reach a settlement — even a partial one — without the need for judicial intervention, which is why many courts are also linked up with mediation services, providing parties with low- or no-cost mediation on the day of their attendance. Make sure you take advantage of the offer.
Step 2: Know your rights and your obligations
Focussing on your own legal rights is easy for parties to family law matters, but it’s important to remember the flip side of that coin: your obligations to both the court and your ex.
The Family Law Rules apply to all parties, and your status as a self-represented litigant is no excuse to miss deadlines or behave unreasonably.
Still, a judge will not hold you to a standard of perfection. Ignore the stereotypes you may have come across portraying them as stuffy or rude — in Ontario’s family courts, the judges are very understanding and forgiving. They often go out of their way to help self-represented parties however they can within the law.
Technical or procedural mistakes are often indulged as long as they are not made repeatedly or in bad faith. If a judge suspects you are playing dumb or taking advantage of their leniency, expect their tone to become a little sharper.
You can access family law forms online, and the Ontario government also provides a guide that covers some of the technical issues you may run into when filing documents or attending hearings by teleconference or video conference.
Step 3: Keep everything in writing
If your former partner is represented by counsel, you should expect to conduct your correspondence in writing rather than over the phone. Family lawyers typically try to avoid speaking with opposing parties directly or in person to reduce the chances of a misunderstanding.
If you’re struggling to deal with your ex’s lawyer, remember there is always the option to hire your own lawyer on a limited basis.
Our firm is one of a number in Ontario that offers unbundled family law services, which involves splitting legal matters into discrete tasks so that self-represented litigants can get professional help from lawyers on part of their case.
For example, you may want to hire a lawyer to draft your claim or to prepare your case and the necessary documents for court, where you will present it yourself. Alternatively, you may want to consult a lawyer for strategic advice about the best way to proceed, depending on the stage of litigation.
If you are representing yourself in a family law matter and would like to consult with a family lawyer on a specific aspect of your matter, feel free to reach out to me or a member of our team, and we can schedule a consultation.
Four tips for staying out of family court this holiday season
By Giovanna Cacciola
The holiday season is a special time of the year for many people, and family lawyers are no different. Sadly, it’s not always for the right reasons.
Ask any family law practitioner, and they will have no shortage of co-parenting horror stories involving the holiday season. In one of the more recent examples, a parent was forced to go to court to secure travel consent for her 15-year-old daughter to accompany her on a winter getaway to Punta Cana, with the judge lamenting the “craziness” of a court appearance that cost more in legal fees than the entire trip itself.
Depending on your relations with your ex, it may not always be possible to avoid a co-parenting clash over the holidays, but there are some steps you can take to reduce the risk of escalation and steer clear of court:
- Plan ahead
In my experience, holiday scheduling occupies a disproportionate amount of time during parenting plan negotiations.
Disputes will focus on different days depending on the specific cultural and religious makeup of your own family, but in most cases, separated spouses come to an arrangement that sees them split the holiday period they used to share as a couple in half and then reverse the roles the next year.
One of the benefits of this alternating approach is that it sets clear boundaries that allow parents to mark their calendars years in advance. If you’re hoping to involve the kids in a special trip or event that will interfere with your co-parent’s allotted parenting time, letting them know well ahead of time will reduce the chances of a fight.
- Give and you shall receive
The season of giving is not just about the presents under your tree.
Negotiations over holiday scheduling always progress more smoothly when both parents are prepared to engage in a bit of give and take, and parties will often discover that a little goodwill can go a long way as they attempt to keep relations as civil as possible throughout the year.
If your former spouse wants to go away with the children for a little longer one year, they may be more prepared to listen to your special requests regarding this holiday period or a future one.
Even if you don’t have a particular ask in mind, there’s a good chance you’ll need some indulgence from your co-parent at some stage in the future, and it will always be helpful to have some goodwill banked.
- Think of the children
As difficult as it can be to remember when your ex is pushing your buttons, the focus of family law is not on the wants and needs of the parents, but on the best interests of the child.
Children are surprisingly tuned in when it comes to sensing tension between adults, which is why you may have to up your civility game when interacting with your ex over the holidays.
The gatherings of family and friends during the holiday season are events when childhood memories are often made, and your focus should be on making sure they are good ones — especially if this is the first time they celebrate with each parent separately.
- Make your own special days
A new parenting schedule can be a shock to the system for everyone involved, but it is also a chance to get creative with your holiday routines. Instead of trying to recreate old memories, you can start your own new traditions or develop a fresh twist on existing celebrations.
For some families, religious or special days are often tied to particular dates, but it’s not always necessary to be bound by the calendar when celebrating during the holidays: I can think of few young kids who would complain about doing a second Christmas morning on Dec. 26.
Children are extraordinarily adaptable when their parents give them the time and space to embrace their new schedules.
If you and your co-parent are having trouble agreeing on holiday schedules for your children, feel free to get in touch with me or a member of our team so we can schedule a consultation.
Understanding the legal implications of evolving household dynamics
By Giovanna Cacciola
You don’t need to be a family lawyer to recognize that the nuclear family is becoming a thing of the past in Canada.
In my personal and professional lives, I see families successfully adapting and thriving within non-traditional arrangements, bringing a heartening sense of optimism and resilience.
But in my line of work, it’s also impossible to ignore the flip side of the coin. These evolving dynamics often bring an additional layer of emotional and practical complexity that can create unique challenges for members of the family unit, especially in the context of a relationship breakdown.
Let’s look at a couple of the demographic trends that stand out and some of the issues they are bringing up in my family law practice in Ontario.
Stepfamilies on the rise
As the societal stigma traditionally associated with divorce has eroded, more people are finding love the second or third time around, welcoming children from previous relationships into unions with new spouses — whether married or common-law.
According to Statistics Canada's most recent census in 2021, more than 550,000 children currently live in a stepfamily, which the agency defines as a couple with at least one child who was born or adopted before the start of their current relationship.
In turn, these stepfamilies account for around 12.6 per cent of Canada’s 3.7 million families living together with children — a figure that has grown 17 per cent since 1995.
Every stepfamily family is unique, but in many cases, the bonds that develop between stepsiblings and stepparents are indistinguishable from those with biological ties. Canada’s family law legislation accounts for this in those unfortunate circumstances when the couple at the head of a blended family separates.
For example, under the Federal Divorce Act, stepparents may be treated similarly to biological parents when it comes to their rights and obligations regarding child support and parenting time in cases where the person “stands in the place of a parent” to the stepchild.
Ontario’s Family Law Act contains similar provisions that lay the foundation for possible claims by or against stepparents who were not married, but demonstrated a “settled intention” to treat a child as part of their family.
As ever, judges have a great deal of discretion when interpreting legislation and determining what is in the best interests of a stepchild, which means that results will vary depending on the specific facts of your case.
Multigenerational households
Multigenerational living can lead to multigenerational family law litigation when a relationship breaks down.
In the most recent census, Statistics Canada reported that the multigenerational home — those containing at least three generations of the same family — is the fastest-growing household type in the country. Around 2.4 million Canadians live this way — a 50 per cent increase since 2001.
The surge has been attributed partly to Canada’s growing immigrant and Indigenous populations, where multigenerational living is most common. However, with the recent spike in the cost of living and soaring home prices, the trend will likely continue in the coming years.
When relations are good, the financial and social benefits of multigenerational living are clear. Everyone stands to benefit when grandparents can help with childcare and develop their relationships with grandchildren while saving the parents on childcare expenses.
However, during marital rough patches, tensions can be easily magnified by the reduced level of privacy that comes with living in such close quarters with parents or in-laws.
After a separation, it’s not unusual to see grandparents dragged into family law litigation — often in disputes revolving around gifts, loans or other financial contributions made to the couple during the marriage. Without proper documentation, opposing characterizations of these transactions could significantly affect the final property division calculations.
Grandparent matters
However, the impact of elder family members extends far beyond property matters. Recent amendments to Ontario's Children's Law Reform Act empower grandparents to initiate court applications for decision-making authority or visitation, offering a legal avenue to be involved in their grandchildren's lives.
The changes also require judges to consider a child’s emotional ties to their grandparents when deciding what is in their best interests, providing a more comprehensive and nuanced approach to family law cases.
According to 2021 census data, nine per cent of children aged 14 and under (517,000) lived with at least one grandparent, up from 3.3 per cent in 2001. More than 9 in 10 of these children are living in multigenerational households.
If you are struggling with a family separation and would like legal advice, contact our experienced team of family lawyers. We would be happy to help you.
Love and money: Pros and cons of a prenup
By Giovanna Cacciola
Prenups are on the rise, but are they for you?
A recent survey by a U.S. polling firm found that 15 per cent of married or engaged couples in the country had signed a prenuptial agreement, up from just three per cent in 2010.
And the upward trend may continue if you believe the pollster’s findings on people’s changing attitudes to the contracts. According to the survey, 42 per cent of adult participants supported the use of prenups, while 35 per cent of unmarried respondents said they were likely to sign one in the future.
In the Canadian context, the Globe and Mail recently reported on a similar trend, with a financial advisor telling the newspaper that she had noticed a spike in prenup interest among professional millennial couples.
“Rather than attach negative emotions to the process or the agreement, they treat it like a business deal to help preserve their net worth,” she said.
Family lawyers in this country don’t use the term prenup, but many of us do negotiate and draft cohabitation agreements for couples who want to get their expectations regarding property division down in writing ahead of time, in case they ever split up. If the parties wish, these agreements can be converted to marriage contracts once they have tied the knot.
Here are some major pros and cons to help you and your partner decide if a cohabitation agreement or marriage contract is the right path for you.
PRO: Asset Protection
A well-drafted cohabitation agreement or marriage contract can be priceless, particularly for parties entering a relationship after they have already built up a significant collection of assets.
Those with an interest in a family business or beneficiaries of family trusts may also prefer to set out their wishes for the distribution of this property in case the relationship breaks down, sidestepping the equalization process that typically happens during a divorce.
In blended family situations, agreements can also be crafted to ensure that certain assets are carved out for the benefit of the parties’ children from previous relationships.
CON: Romance killer
For all the reframing of prenups that has gone on in recent years — painting them as a form of insurance or a business deal — it’s impossible to ignore the psychological effect that they can have on a person asked to sign one.
If both parties are fully open to the idea, it is less likely to cause a rift in the relationship, but in my experience, there is usually one person driving negotiations. In these cases, there is a good chance it will leave a bad taste in the mouth of the less enthusiastic partner.
I would say that the younger the couple and the more evenly matched their finances, the less likely they are to benefit from a family law contract.
PRO: Financial clarity
Money is one of the last great taboos in society, and I am often surprised by how little couples know about each other’s assets and spending habits — even after they are married. The full and frank financial disclosure required between the parties before a cohabitation or marriage contract can be drafted sets them off on the right foot and may encourage the couple to be more financially open as the relationship develops.
CON: No guarantees
Family law contracts are limited in the subject matter they can tackle, so any part of the agreement that touches on parenting time or child support will not be binding. Depending on how family law legislation changes over time, there is also a chance that the agreement could become unenforceable.
In addition, agreements that are unconscionable or were not entered into in good faith could be set aside altogether in court. You can bolster the strength of your family law contract by ensuring that each of you takes independent legal advice and that your financial disclosure is comprehensive and accurate.
For example, a marriage contract provision is just one of the factors that a judge must consider when deciding a claim for spousal support, so parties should not assume that their agreement is determinative of the issue.
In the end, the decision on whether to get a cohabitation agreement or marriage contract is a personal choice for you and your partner and depends on your personal circumstances. If you want to learn more, feel free to contact a member of our team.
Securing child and spousal support in your separation agreement
By Giovanna Cacciola
Death is not usually a favourite topic for splitting spouses, but it’s a crucial conversation when negotiating a separation agreement.
That’s because life insurance is the preferred tool for family lawyers seeking to secure both child and spousal support payments, so that the payor’s obligations can continue to be met in the event of their premature death.
Support security basics
Ontario’s Family Law Act deals with security for support payments in section 34, which empowers judges to require a spouse “who has a policy of life insurance…designate the other spouse or a child as the beneficiary.”
Although the wording of the legislation makes it sound as though the payor spouse needs to have life insurance already in place before the order to change the beneficiary designation can be made, the Ontario Court of Appeal confirmed in a landmark 2014 decision that in the context of its broader provisions, s. 34 also gives courts the power to order a spouse to obtain a fresh insurance policy.
The precise terms of the policy and its level of coverage will depend on several factors, including the amount of support owing and the cost of the premiums, as well as the age and health of both the support payor and recipients.
Beneficiaries
A key decision for former couples is who to name as a life insurance policy beneficiary. In many cases, the recipient spouse makes the most sense, although it is important for people to know that the proceeds could be subject to claims by creditors of the deceased’s estate.
Some parents prefer to name their minor children as beneficiaries, but this can create its own difficulties if they ever have to make a claim, since the proceeds could end up being frozen until the child turns 18 or paid out to a court-appointed guardian — typically the surviving parent.
In other cases, the parties may agree to set up a trust to receive the funds, so that the money can be invested or used for the child’s benefit while they are young and eventually distributed in whole or via installments when they become an adult.
Insurability
Things can get more complicated when the payor spouse has trouble qualifying for life insurance, or the premiums are unreasonably expensive, often because of the person’s advanced age, known health problems or some combination of the two.
In these circumstances, the parties may come to their own arrangements to secure support. For example, they may decide to set aside certain assets or investment accounts that could be used to satisfy any shortfall caused by the payor’s untimely death.
In cases where insurance was not (or could not be) obtained for whatever reason, the surviving spouse or children of a payor may still be able to make a claim for support against the deceased’s estate, but this can be a time-consuming and expensive process, assuming there are enough assets to cover the payor’s obligations.
Material change clauses
While death could be considered the ultimate change in life circumstances, it’s not the only way that a payor’s ability to cover their child and spousal support obligations can be transformed.
Typically, courts will only entertain changes to child or spousal support orders if there has been a “material change in circumstances” since the original order. For support payors, another type of security could come in the form of material change clauses negotiated as part of their separation agreement, where the parties agree that certain specified events will trigger a review or recalculation of the support owed by one to the other.
For example, provisions can be drafted to include a review of support once the payor loses their job or retires. Alternatively, the trigger could be a change in the support recipient’s circumstances, such as their remarriage or entry into a common-law relationship.
Still, there are no guarantees that a judge reviewing a request to alter support obligations will agree that any amendments are required in any specific case. Their determination will be based on various factors, including the terms of the separation agreement, the incomes of both parties and their expectations at the time of the separation.
Please reach out if you are going through a separation or divorce and need guidance to navigate the legal complexities and protect your family’s future. Our team is here to listen and support you every step of the way.
Top financial pitfalls to avoid in divorce for a stable future
By Giovanna Cacciola
Divorce doesn't have to be a financial disaster.
In the immediate aftermath of a separation, it's easy to feel weighed down by the prospect of a drawn-out and notoriously expensive legal process, especially in the era of high inflation and soaring interest rates we're currently living through.
The good news is that the feeling likely won't last: a recent survey found that almost three-quarters of divorced individuals feel better now about their finances than they did when they were married.
But if you need a little help getting to that point, a good place to start is by looking at the missteps taken by those who have already been through a divorce. With almost two decades of practice behind me in family law, I have seen separating spouses make almost every financial mistake in the book. Following is my list of the worst ones to avoid.
- Doing your own math
Even a math whiz can feel like a dunce when it comes to the division of property in family law. Problems tend to arise when people make hasty decisions about their money without realizing they are playing by a different set of rules.
For example, many divorcing couples assume their assets will be split down the middle, when the truth is a little more nuanced (and much more complicated) than that.
In fact, Ontario law generally entitles splitting spouses to an equal share in the property acquired during the marriage, subject to certain deductions and exceptions — with an equalization payment owing from one party to the other to make up any difference. The special status occupied by the matrimonial home adds another wrinkle to equalization calculations, depending on what property each spouse brought with them into the marriage and when it was sold.
In other cases, former spouses expect the assets in their own name only — things such as pensions, investment accounts or real estate — to stay on their side of the ledger after the split. While it remains in their name, in reality, this kind of property usually factors into the equalization calculation, even if it is not divided neatly at the source (although in some cases, a pension can be divided at source to fulfill the payment of an equalization amount).
To get a more accurate assessment of your post-divorce finances, your lawyer can connect you with accountants, valuators and any other professionals you need to ensure that you're fully informed about your rights and obligations before making any significant financial decisions.
- Engaging in "self-help"
In the heat of a separation, with emotions still running high, it's easy for a person's sense of panic to invade their financial decision-making.
Sometimes, couples treat separation as a kind of gold rush, where the winner is the first to drain the joint bank account or max out their credit limit. Pre-emptive strikes to cancel a former spouse's credit cards or cut them off from joint accounts are just as ill-advised.
As well as antagonizing your ex, there's a good chance this kind of behaviour — known in court as "self-help" — will put you on the wrong side of any judge handling your case.
Immediately after a separation, while the parties begin the complicated work of disentangling their finances, judges like to see both sides attempting to maintain the status quo in terms of their finances, and they will not react well to someone whose actions create a false sense of urgency or make life unnecessarily difficult for their former partner.
If you find yourself on the receiving end of a swipe from a self-helping spouse, or you simply suspect that your ex may be tempted to drain your shared accounts, then there are ways to block — or at least stem — the flow of funds without damaging your legal case.
For example, you could ask your financial services provider to switch you to a "joint-to-sign" account. That way, the bank will not release any funds unless they have both parties' agreement in their records.
Although this kind of defensive measure can make handling your finances feel a little cumbersome, ensuring you both have access to the money you need to pay for bills and other necessities is often worth the extra hassle.
- Hiding funds from your ex
Hiding income from your partner runs afoul of one of the core tenets of family law, which calls for full and frank disclosure regarding finances.
Still, I've been doing this work long enough to know that appealing to a person's sense of justice will not always do the trick since not everyone intends to play fair during divorce proceedings.
However, even those without qualms about hiding sources of money from their former partner soon discover that their efforts were pointless.
In modern finance, completing a transaction without leaving a paper trail is virtually impossible. As a result, any deception will likely be caught, as it's not difficult for the opposing side to identify holes or fudged numbers in a person's financial disclosure and follow the threads to the missing funds.
In addition, engaging in any kind of dishonesty regarding your financial statement will strike a fatal blow to your credibility in court, and judges tend to come down hard on anyone they suspect of hiding assets or downplaying their income.
If you're going through a separation or divorce and need help with the legal aspects and protecting your family's future, please reach out to us.
The three keys to success in family court
By Giovanna Cacciola
Proper preparation is critical for anyone who wants to boost their prospects in family court. Whether you are dealing with parenting issues, divorce, child and spousal support, property or other family law matters, here are your three keys to success.
Coming clean to your lawyer
Nobody in this world is perfect, so there’s no point pretending otherwise in discussions with your lawyer.
To properly represent you in court, your counsel must know about any skeletons in your closet. As uncomfortable as it can feel to expose yourself, it will work out better for you in the long run if your lawyer can prepare in advance for the possibility that something will be raised, rather than have them blindsided by the information in court.
In my experience, many of the events that family law litigants are most afraid of their former spouses bringing up are fairly innocuous when viewed through the eyes of an objective third party with enough distance to reframe the incident.
For example, people may be embarrassed to reveal that they are taking certain medications or engaged in a large shopping spree during an episode of poor mental health, but these are not the kinds of issues that a court will judge them harshly for. What may harm your case is obscuring or outright lying about them.
In many cases, your secrets will never see the light of day if the other side does not raise them. And there’s no need to worry about anything leaking via your counsel, since solicitor-client privilege is as sacred a concept as they come in the legal world. There are only a few, extremely narrow circumstances when that bond can be broken.
In other instances, where disclosure is inevitable, addressing issues head-on without prompting may be better than waiting for your ex to broach the subject.
Accuracy in financial disclosure
When it comes to family court, there is nothing to be gained from cutting corners or dragging heels in financial matters.
Family law litigants who blame their accountants or financial advisors for late or incomplete disclosure risk damaging their credibility in the eyes of the judge, who is more likely to suspect that the real reason for the delay is that they have something to hide.
An even worse idea is to engage in any kind of dishonesty regarding your financial statements or tax affairs. Time and again, I see family law litigants attempting to hide assets or downplay their income in the hope of gaining an edge in the courtroom.
Anything short of full and frank financial disclosure is not only unfair but also pointless, since an opponent can almost always identify hidden funds and fudged numbers with access to their own set of financial experts. Most importantly, it will be fatal to your credibility in the eyes of the judge and is likely to do severe damage to your case.
Acting the part in court
For the lay observers, the courtroom can sometimes be difficult to distinguish from theatre, as players dressed in robes take turns delivering speeches to their audience of one.
Different judges have varying expectations on how strictly the traditional customs of the courtroom are to be observed, and there will usually be a certain amount of leeway granted to newbies, such as a recently separated spouse.
Still, there are certain behaviours that will rub any judge — formal or not — the wrong way. Parties who try to sway the court using body language or silent signals are only likely to succeed in annoying the person deciding your case, so refrain from making weird facial expressions, strongly shaking your head or engaging in other over-the-top gestures to signal your disagreement with the other side’s submissions.
Family law litigants can also help themselves by doing their best to behave with decorum, and listening to their lawyer’s guidance on how to act during proceedings. As an experienced family law counsel, I encourage my clients to follow my lead, speaking only when I signal them or when the judge asks them a question.
If you are going through a separation or divorce and need guidance to navigate the legal complexities and protect your family’s future, please reach out. Our team is here to listen, understand and support you every step of the way.
A guide to post-separation adjustments
By Giovanna Cacciola
Separating couples should act quickly to disentangle their finances if they want to stop post-separation adjustments from becoming a post-separation annoyance.
Post-separation limbo
I have a great deal of respect for those who view the end of their marriage as the start of a new chapter. The only problem with this kind of outlook is the blurriness of the line between a person's married life and their new single one.
The time between the date of separation and the day a court grants a final divorce order can feel like a kind of limbo as the parties seek to unpick the knots of their previous joint finances while processing the emotions associated with the breakup.
What is a post-separation adjustment?
Depending on the issues at stake and the intensity of the conflict between the parties, couples may have to wait months or even years until they can obtain a formal divorce order, and some degree of financial overlap during this period is inevitable.
A post-separation adjustment is the term we give for a payment owing from one spouse to the other at the end of the transition to ensure that each paid their fair share for their joint post-separation expenses.
What are post-separation expenses?
All kinds of costs may be considered post-separation expenses, but the most important ones are those associated with the marital home.
Responsibility for key expenses such as the mortgage, home insurance and property taxes are generally split equally among ex-spouses, regardless of who is still living in the home as long as both spouses are on title.
Other – potentially non-essential – matrimonial home expenses fall into a grey zone. For example, an argument could be made to equally divide repair or renovation costs incurred for the purpose of selling the property. However, a spouse may object to sharing those same costs if they fail to increase the property's value or if their ex intends to keep living in the home after their divorce.
Car payments, student loans and lines of credit owing by one party but tied to joint accounts where both parties continue to contribute to the account can also lead to disagreements between former spouses over how these debts should be allocated.
Importantly, child and spousal support are not post-separation expenses, and a judge will consider any claims for retroactive support payments entirely separately, but may give credit for payments made on behalf of a spouse or the children when considering retroactive support amounts due.
Resolving disputes
Post-separation adjustments are among the most frustrating issues for family lawyers. Although the amounts at stake are generally quite small, they tend to generate disproportionate resentment between the parties, each of whom feels like they have been unfairly treated by the other.
If there is a group of people that finds the topic of a couple's post-separation adjustments more annoying than the parties involved, it is judges, who generally dislike having to get into the weeds of credit card statements and utility bills.
A judge is most likely to step in and make an order for adjustment in cases where it is obvious that one party is behaving unreasonably, such as matters where one spouse unilaterally halts any payments towards the maintenance of joint debts and assets.
As a result, my advice to clients is that they seek an agreement on post-separation expenses as soon as possible after their split. I realize this is easier said than done, but any effort spouses expend early on in proceedings will likely pay off in the long run.
For example, simply taking an inventory of all their shared expenses and assuming responsibility for the portions that belong to them will help former couples limit the amount of any adjustment required at a later date.
If you are going through a separation or divorce and want advice on post-separation adjustments or other legal issues, schedule a consultation with us. We would be happy to help you.
Revisit your marriage contract when relocating
By Giovanna Cacciola
Even the most watertight marriage contract can look a little leaky once the couple leaves the jurisdiction where it was signed.
Inter-provincial or international migration has always been a factor for a relatively small collection of spouses with family law agreements in place. However, the combination of easy long-haul travel and post-pandemic employment mobility means more marriages than ever will be ending in the coming years in a different global location from where they began.
Most people don’t realize that failing to revisit a marriage contract after a big move can make a big difference to how your property is divided after separation, as one former Quebec couple recently discovered in Ontario’s courts.
Cross-jurisdictional equalization claims
The wealthy couple at the heart of the case in Torgersrud v. Lightstone met in 1985 while studying for MBAs in Montreal. According to the ruling, their decision to marry in 1987 was made in part to allow the Norwegian wife to work in Canada since she did not have permanent residency status at the time.
In 1988, the parties entered a marriage contract providing that the couple would be “separate as to property,” releasing one another from property rights and debt liability. A second supplementary agreement confirmed that the couple would opt out of Quebec’s newly legislated family patrimony regime before moving to Ontario in 1993.
There were no further amendments to the agreements before the couple separated in 2015 after 28 years of marriage. In the intervening period, the wife accumulated a net worth valued at a fraction of her husband’s, thanks to his multi-million-dollar corporate and real estate holdings.
In fact, the difference was so significant that when the wife applied to the Ontario Superior Court to have the Quebec contracts set aside, both parties agreed she would be due an equalization payment in the range of $5 million to $8 million if her property division claim was allowed to proceed under Ontario’s Family Law Act. They also agreed that the contracts would still hold firm had they separated while living in Quebec.
Quebec contracts no bar to Ontario claim
After a two-day hearing, Ontario Superior Court Justice Adriana Doyle sided with the wife, concluding that the Quebec contracts did not bar her from making an equalization claim under Ontario’s Family Law Act.
Although the agreements met the requirements for domestic contracts under the Act, the judge concluded they did not contain the “direct and cogent language” required to oust Ontario’s equalization regime.
“In my view, the mere statement that the parties are ‘separate as to property’ is not enough. There is no clear language as to what is to happen on marriage breakdown and a clear renunciation of their property rights upon marriage breakdown,” Justice Doyle explained, adding that case law on the subject sets a high threshold for judges to find that an out-of-jurisdiction marriage contract prevails over the equalization provisions in Ontario.
Even if she was wrong on this subject, the judge went on to say that she would have exercised her discretion to set aside the contracts in any case, “on the basis that the husband failed to disclose significant assets and the wife’s lack of understanding of the nature and consequences of the instruments.”
Increased mobility and family law contracts
People are increasingly mobile in the 21st century, but the same can’t be said of domestic contracts. When a couple arrives in Ontario from another jurisdiction, they should see a local lawyer to find out how likely the marriage contract or any other family law agreements in place between them are to stand up to the scrutiny of an Ontario judge.
The same goes for couples leaving the province after signing family law contracts constructed according to the law of Ontario. Regardless of where in the world they settle, each place will have its own approach to recognizing out-of-jurisdiction family law contracts on the breakdown of a marriage.
If you have recently moved to Ontario from another jurisdiction and need legal guidance on your family law contracts, please contact us for a consultation. We would be happy to help.
Unbundled legal services and other options for self-reps in family court
By Giovanna Cacciola
Nowhere is the access-to-justice crisis in this country better illustrated than in our family courts.
According to Justice Canada, provincial statistics suggest that between 64 and 74 per cent of parties are unrepresented when a family law application or action is filed with the court. By the time they appear in court, that number falls slightly to between 40 and 57 per cent.
I wouldn't suggest that self-representation is ever the best choice for a family law litigant, but I'm realistic enough to know that a full-service retainer with a family lawyer is, unfortunately, not a viable option for everyone.
However, it is true that some matters are more suited to self-representation than others. Low-conflict couples without any major property issues and parents who want their decision-making and parenting time agreements formalized in a court order are among those at the lowest risk from a do-it-yourself divorce.
Still, I recommend that couples whose matters are more complex or hotly contested look into the possibility of obtaining counsel because there is a significant chance that a DIY approach to the process will cost them more than they save in legal fees. Non-legal factors such as a history of domestic violence or either party's mental health problems can also add an extra layer that demands the assistance of counsel.
Even legally trained professionals struggle when dabbling in family law, so I feel sorry for parents and spouses who have to navigate the minefield of a divorce or separation without the guidance of an experienced lawyer. To help you out, here are my top three tips for getting through a DIY divorce.
Get the most out of the available resources
Legal aid certificates are a distant dream for all but the most deprived Ontarians thanks to the sad state of funding in this province, but there are some publicly funded resources that I would urge self-represented family litigants to take full advantage of.
For example, every court location in the province is home to a Family Law Information Centre (FLIC), a free service dispensing information on various family law issues, including separation, divorce, child protection and alternative forms of dispute resolution.
If you're at court for a hearing, the FLIC can also put you in touch with duty counsel provided by Legal Aid Ontario, who can give you advice either in person or remotely and may even help you out in front of the judge. Just be aware that demand for their assistance is high, and you're unlikely to see the same person twice.
Respect is key
With emotions frequently running high in the wake of a separation, it can be hard to keep relations with a former spouse civil. Still, to the extent that you can keep all interactions with your ex (and their lawyer, if they have one) professional and businesslike, you will be doing yourself a service.
In general, family law judges will go out of their way to help self-represented parties in whatever way they can within the law. They will also frequently make allowances for technical and procedural mistakes that you would expect from a layperson with no legal training.
However, there are limits to the court's indulgences, and any sign of disrespect from a litigant will likely shorten the judge's patience for even their minor rule breaches.
Be warned that misbehaviour does not have to occur in the courtroom to have an effect on your case: disparaging communications delivered via email, phone or even in person to your former spouse or their counsel are likely to find their way into evidence via affidavits, where a judge is unlikely to look on them kindly.
Get limited legal help
Although it is not well known by the general public, there is some middle ground between hiring a lawyer on a full retainer and going it alone with no legal representation at all.
For self-represented parties who wish to get at least some legal help from a fully qualified lawyer, our firm is one of a number in Ontario that offers unbundled family law services. Also known as a limited scope retainer, this involves splitting legal matters into discrete tasks so that self-represented litigants can get professional help from lawyers on parts of their cases.
For example, a party may hire a lawyer simply to draft a claim or put together other legal documents that are necessary for their matter but complete the rest of the process themselves.
Alternatively, a person may want to consult a lawyer for strategic advice about the best way to proceed with their family law case, but then execute the plan themselves.
If you are self-representing in family court and are feeling overwhelmed, know that you don't have to go it alone. Whether you need help drafting legal documents or want strategic advice about your case, we are here to help. Don't hesitate to contact us for a consultation and take the first step towards a positive outcome in your family law matter.
Untying the knot: Navigating unique challenges of grey divorce
By Giovanna Cacciola
With grey divorce on the rise, a growing number of splitting spouses are turning their attention from their kids to their cash.
Over the last three decades, this country’s overall divorce rate has plummeted, according to data reported by Statistics Canada, with one key demographic bucking the overall trend: over-50s, whose increased activity has dragged the overall average age of Canadian divorcees from their mid-30s into their early 40s.
While roughly 13 of every 1,000 married people divorced each year in the early 1990s, the most recent stats available show that by 2020, the rate had reduced to just 5.6. Meanwhile, the rate for older Canadians increased steadily from 4.2 per 1,000 married people to 5.3 between 1991 and 2006, since when it has leveled out at around that figure.
More assets, more stakeholders
In some ways, grey divorces are a simpler affair compared with those that take place earlier in life since any children shared by the couple tend to be fully grown and out of the house. In fact, the departure of the youngest child is frequently the catalyst for one spouse to finally act on a longstanding intention to leave an unhappy marriage.
As a result, issues such as child support and parenting time — often some of the most hard-fought and emotionally sensitive in family disputes — are generally off the table unless the couple cares for an adult child with a disability.
On the flip side of the coin, older couples contemplating a separation have typically accumulated assets of much greater value and complexity after earning higher incomes for longer periods than their younger divorcing counterparts.
Much of the attention for splitting spouses and their counsel focuses on pensions and investments held by the parties, which in many cases will have overtaken the matrimonial home as the most valuable property in the marriage.
While legislative amendments allowing for pensions to be split at the source have taken some of the complexity out of valuation and equalization calculations, there is still plenty of room for argument regarding the size and duration of spousal support payments due from one party to another.
When a separation comes before the pension holder’s retirement, the parties must beware of the potential for double-dipping, which refers to situations in which one spouse receives an equalization payment to account for the division of the other’s pension, only to benefit again when their former partner’s income from the same pension is taken into account for spousal support purposes.
Splitting pensions
In its landmark 2001 ruling in Boston v. Boston, the Supreme Court of Canada concluded that double-dipping is “generally unfair,” but added that it is not always possible to avoid. Depending on the precise facts of their case, recipients may be able to show that support is due on the portion of the pension income that cannot be attributed to the earlier equalization, or that any double-dipping is reasonable in the circumstances.
Splitting spouses must also take care with the wording of their separation agreements when it comes to the effect on spousal support of the payor’s retirement. Provisions can be drafted to include a review of support once the payor reaches a certain age or to clarify that the person’s retirement may be considered a material change in circumstances.
What happens in retirement?
Still, no party should ever assume that their spousal support obligations will reduce or cease altogether simply because they have retired. A judge reviewing a request to change support obligations will make their determination based on a variety of factors, including the voluntariness of the retirement, the incomes of both parties, the length of the marriage, how long support has already been paid and health of the parties to name a few.
Spouses who separate after one of them has begun collecting a pension or receiving payments from an RRIF have a different set of factors to consider, including the tax consequences of various options for property division transactions.
In addition, it’s generally not possible to change the identity of the survivor beneficiary for a defined benefit pension after it has begun paying out to the member, which means that the asset may factor into the net family property of the non-member spouse at the time of separation, assuming that person is named as the beneficiary.
If you are facing a grey divorce and would like to discuss your options with a family lawyer, schedule a consultation with us. We would be happy to help you.
Cyberspace the newest frontier for domestic abusers
By Giovanna Cacciola
Cyberstalking is the newest iteration of one of society's oldest ailments: domestic abuse.
Digital tools make it easier than ever for a person to cyberstalk a former partner via social media, email, text or instant messaging. The level of harassment varies wildly from case to case, with many victims experiencing rude or unwanted comments in private or public communications from their ex.
At the other end of the scale, digital technology can play a role in more serious domestic violence incidents, as the Toronto Star highlighted in a recent article about a B.C. woman who police believe was shot dead by her estranged husband.
Before her death, the woman had changed her phone number several times and reported her concerns to law enforcement after finding an Apple AirTag tracking device — normally intended for locating household items — left in her car.
And this wasn't an isolated case; according to a survey quoted by the newspaper, 89 per cent of anti-violence program respondents said the women they worked with had disclosed some form of technology-facilitated abuse in 2021.
Non-criminal legal remedies emerging
If there are any silver linings from the increasing prevalence of digital stalking in family law settings, it's the fact that our courts are adapting to some extent, providing opportunities for parties seeking redress outside of a criminal complaint.
For example, in the 2019 case of Yenovkian v. Gulian, an Ontario Superior Court judge awarded a woman a total of $300,000 for breaches of privacy, intentional infliction of mental suffering and punitive damages after finding her former partner had engaged in a years-long cyberbullying campaign that included the public posting of edited video of their two children, abusive emails and false allegations that the mother abused, drugged and kidnapped their shared son and daughter.
Even more recently, in the 2022 case of Ahluwalia v. Ahluwalia, another judge of the same court became the first to recognize the tort of family violence as she ordered a husband to pay his ex-wife $150,000 in damages for physical and psychological abuse that occurred throughout their 17-year marriage. This decision allows abuse victims to pursue damages as part of their family law claims rather than forcing them to launch a separate civil claim. (If you are interested in reading more about this case, I have dedicated a blog to it further down on this page titled: Family violence tort provides new path to seek damages for domestic abuse.)
Protecting yourself from cyberbullying
For the men and (mainly) women in the midst of ongoing physical or digital abuse from a current or former partner, some of the most challenging steps they have to take on the road to justice are those first attempts to seek the legal and therapeutic help they need to move forward.
In my role as a lawyer, I try to be as supportive and understanding as I can for clients in these situations. Although it's easier said than done, I urge them not to let fear be the guide to their actions.
One way I help them gain control of their situation is by taking steps to improve their security practices in their online lives. For example, simple cyber hygiene measures such as changing passwords, boosting privacy settings, curating contact lists and ignoring requests from strange accounts can make a big difference.
Resist posting on social during court proceedings
In an ideal world, clients involved in court proceedings concerning parenting issues would not post on social media, but I know this is not always a realistic expectation. If they insist on continuing to use their accounts, I encourage them to unfriend anyone connected to their former partner and think about how a judge would view each post before publishing, to minimize any potential damage to their case.
Anyone who receives an abusive message from a former partner is best advised not to engage with the person. However, that does not mean ignoring the behaviour altogether, which should be documented for future use by the police or in court.
I also encourage clients with concerns for their physical well-being to put together a safety plan — a kind of risk assessment that encourages individuals to contemplate the steps they would take if they come into contact with their abuser again.
The process also prompts many people to take precautions around their home, such as changing alarm codes and rearranging furniture to reduce a former partner's familiarity with the property.
If you're in an abusive relationship, it's important to know that you are not alone and help is available. Reach out to a trusted friend or family member, a domestic violence hotline, or a family lawyer who can help you understand your legal options and guide you through the process of seeking protection.
Varying interim or final family court orders
By Giovanna Cacciola
A final order regarding support or parenting following separation isn’t always that final. Life happens, circumstances change, and that’s where a motion to change a family court order comes into play.
Spousal or child support and parenting
There have been significant societal changes in recent years with the pandemic and now the economy that could impact previous agreements or orders. Typically, changes will focus on child support, spousal support or child-related issues.
As I write this, there are just as many motions for change coming to my office as there are to draft new applications from scratch. And more often those changes are more about support and less about parenting.
Who the children live with and how much time they spend there might change as the years go by. The calculation of the amount of support may need to be altered if they’ve been living with one parent and will now live with the other, or if they move to a 50-50 situation.
Another common scenario is when one party gets a new job with a substantial pay increase. That may mean one is suddenly earning a great deal more money than they had been when the agreement was drafted. Retirement can also present a whole different scenario.
The process
If both parties agree to the change, it is a simple matter of drafting a consent order or amending the separation agreement. Otherwise, one party will need to file a motion to change.
The court, then, requires evidence of a material change in circumstances for either party to seek a variation. The simple passage of time is no longer a good enough reason to change the contents of an order related to parenting, for instance. There must be something that has changed in the children’s circumstances, such as in the residency, schooling, conflicts with parents, issues related to mental health or specific concerns such as bullying on the school grounds.
A motion to change needs to be drafted and presented to the relevant court.
Material change in circumstances
The same rule applies to a spousal support arrangement: There must be a material change in the family’s circumstances — typically economic or income-related — to alter an existing agreement or court order.
The main question is whether the change is material. But what exactly does “material” mean?
A high earner who receives a $20,000 to $50,000 increase in income may not be considered material, whereas that amount would be material to a lower income earner. Essentially, what is material really depends on the specific facts of each case.
The same standards apply to child support, but other material changes can occur in this area, such as when a child goes away to school, drops out of school or ages out.
The difference is that child support can be reviewed every year based on income tax returns. This means that a material change in a party’s income is not required to change child support, as the quantum of child support is reviewed every year anyway.
Separation agreements
Seeking changes to a separation agreement is similar, but there is one extra step, and that is filing the separation agreement with the court. Once the child support and spousal support are filed with the court, the separation agreement is considered a court order.
Separation agreements can also spell out what a material change in circumstances would include or what is required in an increase or decrease in income for it to be considered a material change. Of note, a court order from a judge following a trial will outline the amount of support, but it won’t asset out what would be considered a material change.
Legal guidance
Whatever the particulars of your situation, it is important to seek legal advice as judges have discretion to grant a motion to change or not, depending on the facts of the case.
If you are seeking to change an existing family law agreement or court order and would like to discuss your options, schedule a consultation with us. We would be happy to help you.
No home-field advantage for Ontario parents in non-Hague child abduction cases
Parents challenging the return of a child to non-Hague Convention jurisdictions on the basis of country-specific conditions and legal traditions may not find much sympathy from the bench following a series of recent court decisions.
Signatories to the Hague Convention on the Civil Aspects of International Child Abduction — affirm that custody/decision-making cases in their country will be decided on the basis of the child’s best interests.
Under s. 23 of Ontario’s Children’s Law Reform Act (CLRA), parents who have removed a child from a non-Hague country may ask a court in the province to assume jurisdiction and decide custody/decision-making and access/residency issues where their return would result in “serious harm” to the child, on a balance of probabilities.
Canada’s legal system enjoys a stellar reputation both at home and abroad, so it’s understandable why many non-lawyer parents expect some home-field advantage in s. 23 cases, especially in those centred around foreign jurisdictions with less progressive approaches to gender or sexuality.
However, in its recent decision in F. v. N. [2022] S.C.J. No. 51, the Supreme Court of Canada killed off the paternalistic notion that Canadian courts always know best when it comes to custody issues.
In June 2020, the mother in the case left her home in Dubai with her two young children, before informing the father that she intended to stay in Ontario rather than return to the United Arab Emirates (UAE), where she had no independent residency status.
Part of her case for Ontario to take jurisdiction under s. 23 rested on arguments that UAE law allocates custody and guardianship on the basis of gender — circumstances she claimed were incompatible with Ontario law.
Although the nation’s top court split 5-4 when it came to the result — upholding the trial judge’s order to return the children to Dubai — all nine judges on the panel agreed with Justice Nicholas Kasirer’s discussion of the legal principles at play, where he wrote that the CLRA does not prevent children from being returned to foreign jurisdictions where the law and rights of parents may differ from Ontario, as long as the “ultimate question of custody is determined on the basis of the best interests of the child.”
While he found it conceivable that foreign laws could be “so profoundly irreconcilable” with Ontario’s that remitting the matter to that jurisdiction would give rise to “serious harm” under the CLRA, Justice Kasirer quoted a renowned international family law expert when he wrote: “[I]t is appropriate for a court seized of a return application to recognize that it does not have a ‘monopoly in knowing what is best for children and certainly not in knowing what is best for children who have been growing up in non‑Western cultures.’”
Ultimately, Justice Kasirer ruled that the trial judge had properly considered the impact of UAE laws as he satisfied himself — based on expert evidence — that the country’s rules mandating the allocation of parental responsibilities along gender lines were not automatic, and that UAE judges would decide custody and access issues based on the best interests of the child.
F. v. N. is not the only recent s. 23 case to feature a failed challenge based in part on the laws of the country of habitual residence. In Ajayi v. Ajayi [2022] O.J. No. 4115, a three-judge panel of the Divisional Court upheld the trial judge’s decision to order the return of three children to Nigeria after their mother fled with them to Ottawa.
The mother in the case argued that her identification as a member of the LGBTQ community in family law documents filed by the father could attract negative consequences to her in the Nigerian courts, calling an expert to opine on the level of discrimination faced by members of the community in a country where “cross-dressing” (I am using the term as it is used in the case) is criminalized, same-sex marriage is prohibited, and certain homosexual acts are punishable by prison sentences.
As both cases demonstrate, parents face a high bar to meet the “serious harm” test under s. 23 of the CLRA, and judges’ determinations are incredibly fact specific.
In F. v. N., the split in the Supreme Court panel emerged over the likelihood of harm the children would suffer if separated from their mother, who claimed she would not follow them back to Dubai. While the majority found no reason to interfere with the trial judge’s conclusion that the children would not suffer serious harm — whether or not the mother came with them — the minority found that he had seriously misapprehended the evidence on this point.
Any concern that the mother’s claim for serious harm was self-engineered was unfounded, considering the reasonable and legitimate reasons she had for refusing to return — including her precarious residency status in the UAE — the minority added.
In Ajayi, the case could be said to have boiled down to a battle of experts, and the Divisional Court saw no error in the trial judge’s interpretation of Nigerian law or her preference for the father’s expert, whose evidence she found was “more specific to family law” compared with the “more general evidence regarding human rights law and their abuses” given by the mother’s expert.
In an increasingly mobile world, international custody disputes are likely to continue arising in greater numbers before Ontario courts. The more parents and their counsel can focus on the individual circumstances of the child, as opposed to conditions in the country where they would be returned, the greater their chance of success on a s. 23 application.
In cases involving older children, their own views could come into play, such as in the case of Ojeikere v. Ojeikere [2018] O.J. No. 2041, which was decided in favour of the Ontario-based mother.
She succeeded in having Ontario take jurisdiction over the custody and access of the three children she refused to return to Nigeria after the Court of Appeal for Ontario allowed the admission of the teenagers’ interviews with the Office of the Children’s Lawyer as evidence, alleging their father physically disciplined them using objects, as well as by spanking.
For each of the three-judge panel, the risk of physical mistreatment raised the threat of suffering to the children beyond the “serious harm threshold” — either on its own, or in combination with the risk of psychological harm associated with a return to Nigeria.
Co-parenting strategies to help you navigate the holidays with less stress
By Giovanna Cacciola
Advanced planning is key for separated or divorced parents looking forward to spending the holidays with their children free of stress.
Religious holidays and special family events can be a source of extra tension for separated parents, and particularly difficult for those who have recently split up. But there are effective coping strategies. In this post, I’m sharing the best tips I’ve learned from clients over the years to help parents ensure they put their children’s need front and centre, allowing everyone to get the most out of the holidays.
Don’t sweat the small stuff
Key in your approach to enjoying the holidays and making it as free of tension as possible is ensuring you don’t stress about the small stuff. If the schedule is off by an hour or so, don’t turn it into a fight that will ruin the rest of your day and possibly others.
It’s important to remember that children pick up on the tension, even though you may be going to great lengths to ensure they’re not exposed to any conflict.
When it comes to holiday interactions with your co-parent, a good rule of thumb is to be cordial and flexible. Although it can be frustrating, the best approach is to compromise where you can and enjoy the time you have with — and without — your children.
Avoid surprises
Share your plans and scheduling with all family members to avoid surprises. Not having everyone in the loop about the schedule could leave the other parent grumbling about their displeasure, which could put a damper on the festivities, particularly if that’s shared with the children.
Talk it out
If this is the first holiday after a family separation, parents will want to talk to the children to prepare them for the new experiences they are bound to encounter. Keep them in the loop and even get them involved in helping to plan new holiday traditions. Older children, especially, will want a say as to where they spend their time.
If the children know the holidays are going to look a little different, but that they will still have the opportunity to make new memories, they’ll be better positioned to enjoy the holidays.
Share detailed plans early
When co-parents agree to share plans and details concerning their children’s scheduled events and activities around the holidays, there’s less to fight about. This is especially important if there are travel plans that involve updating passports and exchanging itineraries to ensure there are no problems or disappointments.
Parents who plan to travel with the children must obtain written consent from the other parent. Incidentally, that rule applies to all parents, even those who aren’t divorced. The document confirms the non-travelling parent is aware of the plans and allows the children to travel with the other parent.
That consent should not be left to the last minute because the document must be notarized, and family law lawyers are often quite busy at this time of year.
Develop new traditions
The holiday season following a marital breakup is often the most difficult, particularly for those who are doing an alternating year schedule where one parent has the children on Christmas Day one year, but not on the next, when it’s the other parent’s turn.
Instead of trying to recreate a past routine or memory, try embracing the change and starting a new family tradition. Taking the kids to a holiday light show or a concert on Christmas Eve can become a new highlight of their holiday season.
Children are equipped to establish new schedules, patterns or traditions as long as both parents give the children permission to enjoy new things — with or without them. So, when Christmas Day arrives and it’s time to hand off the kids to the other parent, both you and your children will have a new memory to embrace.
If you and your co-parent can’t agree on holiday schedules for your children and you would like to speak to a family law lawyer about your options, schedule a consultation. I would be happy to help.
A Parenting Plan is a Blueprint for a Family’s Post-Separation Life
By Giovanna Cacciola and Christine Lu
Top of mind for a separating couple is how will their relationship with their children be affected, making the development of a parenting plan a priority.
As one household separates into two, a great deal of thought should be given to not just where the children will be living and when, but how they will transition from one parent to the other.
Consideration of the children’s needs and creating a stable environment for them is of primary importance. Their best interests should remain the focal point throughout the process to ensure they continue to have significant relationships with both parents.
What’s included in a Parenting Plan?
A parenting plan is a written document that outlines how parents will make important decisions about their children and communicate relevant information to the other parent after separation or divorce. This blueprint for the family’s post-separation life is tailored to their unique needs and circumstances and should be developed as soon as possible to minimize disruption to the children’s lives.
Decision-making responsibility dictates how parents arrive at major decisions affecting their children, including health care, education, religion, and extra-curricular activities. The major models are as follows:
- Sole decision-making responsibility — where one parent has the sole authority
- Joint decision-making responsibility — where both parents have equal authority
- Bifurcated decision-making responsibility — where one parent, for example, has sole authority over decisions concerning extra-curricular activities, and the other parent has sole authority over decisions concerning health care and education
- Sole decision-making responsibility, in consultation with the other parent — where one parent has final authority once they have consulted the other parent.
Which model of decision-making responsibility is appropriate for a separating couple will depend on a variety of factors, including but not limited to parents’ ability to communicate and cooperate with one another, as well as the feasibility of exercising that responsibility, i.e. if a parent spends a significant amount of time travelling for work, etc.
Typically, the plan also includes a parenting time schedule that specifies when the children will be in the care of each parent. With younger children, parents may opt for a 2-2-3 schedule, where children spend 2 nights with one parent, 2 nights with the other parent, and 3 nights with the first parent. A biweekly 2-2-5-5 or 3-3-4-4 arrangement is also possible. A week on/week off schedule may work better for older children, who often have a preference about where they would like to live and can more easily adjust to not living with the other parent for a longer period of time
The parenting time schedule can either be fixed — with no deviations from the agreed-upon plan — or it can be flexible to accommodate different situations. For example, if one parent has a job that involves a fair amount of travel, and the former partners remain on good terms, a flexible arrangement might work well. Ultimately, determining the parenting time schedule will depend not only on the children’s best interests, but also on a family’s needs and circumstances.
A well-drafted parenting plan can also include details for handoffs, childcare, babysitting, special expenses, how changes to the schedule will be handled and the protocol for when one parent wants to travel with the children.
It should be noted that handing off the children from one parent to the other can happen just about anywhere — at one of the parents’ homes, school or one of the children’s activities. It will depend on what the parents agree to and whether it fits the needs of the children.
Mitigate the risk of litigation
Issues relating to children tend to be some of the most contentious in family law. Failure to reach an agreement could lead to litigation, prolonging the uncertainty and instability for the children.
In our experience, mediation can be a useful exercise for parents who are not on the same page about their children, helping them to come up with a plan that works for everyone.
If parents cannot agree on a long-term plan, they should put a temporary arrangement in place to give the children a sense of stability while their parents work through the process of separation, which can involve other issues.
Negotiating an effective parenting plan is hard work, and parents should approach the exercise with an open mind and a willingness to compromise. But they should never agree to a situation they’re not comfortable with. Both parties must make their positions clear so that they do not prejudice themselves if they want to make a change in the future.
The bottom line is that the plans need to make sense for both parents and children.
Other considerations
As a regular parenting plan is established for the children’s day-to-day schedule, it is prudent for parents to also develop a holiday parenting plan that spells out where the children will be and when during vacation, holiday time and special occasions.
Developing a holiday plan alongside the regular plan can help to avoid disagreements in the future. It is common to alternate or split holiday weekends. The plan can also consider future years so that the children stay with one parent during a particular holiday one year and then with the other parent the following year.
Access to extended family and other siblings may also be part of the communication in developing a plan as well as any other important dates or focus, such as religion or extra-curricular activities.
Properly drafted, a parenting plan can set a family up for success post-separation. It should evolve to reflect changes in the family’s situation, such as when the children move from elementary to high school or become involved in different activities.
If you are a parent facing a separation or divorce and want more information about parenting plans, schedule a consultation with us. We would be happy to help you.
Cohabitation agreements reduce the grey area over property in
common-law relationships
By Giovanna Cacciola
Canada’s growing population of common-law spouses need to take a more proactive approach than their married counterparts if they want to get their fair share should they ever split up with their partners.
According to a recent release from Statistics Canada, common-law couples are more mainstream than ever, accounting for around 23 per cent of all spousal relationships. That’s almost four times the six-per-cent figure recorded in the early 1980s, placing this country ahead of all other G7 nations. For reference, just 12 per cent of U.S. couples are common-law.
Property division differences
It’s not clear from the data whether common-law relationships are more or less likely to break up than marriages, but what common-law spouses can be certain about is that they will be far less protected when it comes to a division of the couple’s property on separation.
That often comes as a surprise, particularly to those who have been in committed, long-term relationships that looked and felt like marriages in all but name.
Dividing a married couple’s property can be one of the trickier parts of a divorce, depending on the size and complexity of each party’s assets, but once the appropriate property has been identified and valued, provincial law takes the guesswork out of the calculation.
Under Ontario’s Family Law Act, married spouses are entitled to an equal share in property accumulated during the marriage, subject to certain deductions and exceptions, with an equalization payment owing from the spouse whose assets grew more during the span of the marriage.
To take a simple example, if both spouses entered the marriage with nothing to their name, and one spouse ended with $100 on separation, while the other had $50, then the spouse with $100 will have to make an equalization payment of $25 to their ex so that they both leave the marriage with $75.
By contrast, there is no legislation at all in this province dealing with the division of property at the end of a common-law relationship, which means that lawyers and judges are left to deal with all the resulting grey areas on a case-by-case basis.
Joint family ventures
The growing prevalence of common-law relationships in Canada has prompted calls from many to enshrine the property rights of common-law spouses in law. In fact, that call was answered in B.C. in 2013, when legislative amendments gave common-law spouses the same property rights as married spouses if they have lived continuously in a “marriage-like” relationship for at least two years.
However, Ontario has yet to follow suit. In the meantime, splitting common-law couples in this province must make do with a special kind of equitable claim based on the doctrine of unjust enrichment, which allows one partner to attempt to show that the other benefited unfairly at their expense.
Pensions and real estate owned in the name of one party are often at the heart of equitable claims launched by former common-law partners, who may allege that their contributions and sacrifices played a role in the extra value now being enjoyed by the titled partner alone.
In 2011, the Supreme Court of Canada’s landmark decision in Kerr v. Baranow provided a new tool to common-law spouses seeking a fair distribution of property, by confirming that a “joint family venture” can form the basis of an unjust enrichment claim. Instead of making a claim over individual pieces of property, spouses are now able to claim an interest in all the property associated with the relationship, as long as each party contributed to the accumulation of family wealth during its course.
The problem with joint family venture claims is that they take a great deal of effort and evidence to establish, while the law around them is constantly evolving. In addition, even when a judge is satisfied that the various legal thresholds have been met, there is no guarantee that they will order a 50-50 split of the property at issue.
All of this uncertainty gives the defendant spouse a great deal of leverage in settlement negotiations, as it can be difficult to justify the expense and delay of getting to trial when the risk of an unfavourable decision is so high at the end of the whole process.
Cohabitation agreements
Rather than fighting it out in court, a better solution for many common-law couples is to set out their expectations regarding property division ahead of time in a cohabitation agreement that’s negotiated and drafted with the help of lawyers to drastically reduce the legal grey areas associated with property division for unmarried couples.
There’s not much fun or romance in contemplating the end of your relationship, but a well-drafted cohabitation agreement between common-law spouses will be priceless if it is needed. Whether or not it ever kicks in, the agreement can also provide some protection and stability to what may be a temporary arrangement or the start of a lifetime together.
Judges retain the authority to set aside cohabitation agreements that are unconscionable or were not entered into in good faith, so full and frank financial disclosure — as well as independent legal counsel for both spouses — are critical before any contract is signed.
If you are interested in exploring whether a cohabitation agreement is right for you and your partner, schedule a consultation with me. I would be happy to help you explore your options.
Understanding Child Support Obligations in Ontario
By Christine Lu
When spouses with children separate or divorce, parents must provide financial support to those dependent children. Typically, the parent with whom the children primarily reside will be owed child support by the other parent.
Defining “primary residence” is one of the first steps in determining which parent is paying child support and which parent is receiving child support. However, this determination, in addition to deciphering the amount and how extraordinary expenses are shared is not always straightforward and varies by province.
Support calculations in Ontario
The amount of child support a parent will pay is based on their gross annual income, where the children reside and how many dependent children there are. The Federal Child Support Tables set out each province’s monthly child support payments using these criteria.
Let’s look at a scenario where Parents A and B are divorcing, and the children will spend 60 per cent of their time living with Parent A. Under these circumstances, Parent A is the support recipient, and Parent B is the support payor.
If Parent B earns $80,000 a year, according to the 2017 Federal Child Support Amounts: Simplified Tables: Ontario, they will pay $727 for one child, $1,182 for two children and $1,546 if there are three. There is a common misconception that you double the support amount for one child if you have two children. As you can see from the example above, this is not the case.
The amount must be calculated according to the Guidelines. Child support payments will generally continue until the dependent child turns 18 or obtains a completes post-secondary degree, which usually lasts until they turn 22 (in a typical four-year degree scenario).
Of course, support obligations can vary from the Guideline amounts in situations where, for example:
- each parent has the child/children at least 40 per cent of the time; or
- some children live with one parent, and the other children live with the other parent.
While there may be exceptional circumstances where a parent pays less than the guideline amounts, you or your former spouse cannot contract out of child support payments unless the deviation from the Guidelines is in the children’s best interests.
It’s important to note that the term “parent” includes birth parents, non-birth parents, adoptive parents, and sometimes stepparents. Parents also need not be legally married to apply for support obligations.
Using the Guidelines, parties can then make a written agreement setting out child support obligations. However, suppose you cannot agree on an amount. In that case, it is crucial to speak with an experienced family lawyer to resolve child support issues through mediation, arbitration or seeking a court order.
Special expenses
The Guideline amounts relate to basic child-related expenses such as food, clothing and shelter and are a starting point. However, parents know that raising children involves many other expenses — dental and medical expenses not covered by insurance, daycare, summer camp, extracurricular sports, post-secondary education, and the like. Known as Section 7 expenses under the Federal Child Support Guidelines, these are defined as “special or extraordinary expenses” that are:
- Necessary because they are in the child’s best interests
- Reasonable given the means of the parents and the child and considering the family’s spending patterns before the separation.
These expenses are expected to be proven by the support recipient and agreed upon by both parents. However, there may be instances where the support payor feels the costs are not reasonable or necessary. In those cases, they may apply to the court for their input or review.
Speaking of review, child support payments are not set in stone and should be reviewed annually. Typically, my clients will review in early May after filing their income taxes to see if the amount should be adjusted. For example, an adjustment could be made if the support payor’s income changes or the child finishes school, marries or moves out on their own. But, again, if parties cannot agree to a change in amount, they may need to mediate or litigate the issue.
Arrears and Enforcement
If the support payor defaults on payments, enforcement will depend on how the parties agreed to the payment of the child support amount.
When a court orders a parent to pay child support payments in Ontario, that order is automatically filed with the Family Responsibility Office (FRO). The FRO — a program of the Ontario government — helps families get the support they are entitled to by collecting, distributing and enforcing child and spousal support payments. If a payor is registered to pay support through FRO, the payments go through the office and are deposited into the recipient’s account.
If your child support obligation was reached by a separation agreement or other domestic contract, it is often the case that the parties would have negotiated that the support payor send the support recipient directly monthly cheques or e-transfers. This arrangement can be agreeable to all parties until there is disagreement about the child support amount or there is a default.
In such instances, it may be necessary for the support payor to either register the separation agreement or domestic contract with the FRO in order for the FRO to log a default and take enforcement action. Enforcing payment could involve a court application if there is a disagreement about the child support amount.
While the FRO claims most of its clients pay willingly and on time, there are situations where a person falls behind on their support responsibilities. In those instances, the FRO will contact them and start by working out a voluntary arrears payment schedule. However, sometimes the parent in arrears will claim they have a reduced or non-existent income and that their monthly payments should be reduced or terminated. A disagreement of that nature might trigger the FRO to start Default proceedings and also another court action brought on by the support payor in an attempt to change the support obligations
If the support payor is in arrears, the FRO can take some serious steps, including garnishing wages and bank accounts and suspending driver’s licenses and passports. Also, it should be noted that declaring bankruptcy does not eliminate a parent’s child support obligations.
To understand your child support obligations and rights, contact our office to schedule a consultation.
Part 2: The pros and cons of family dispute resolution
By Giovanna Cacciola
In part 1 of this series, we looked at the benefits and drawbacks of family dispute resolution, including mediation and arbitration. Although family lawyers have a duty to encourage clients to try a dispute resolution process, sometimes litigation is the only way forward.
For example, if the other side refuses to provide basics of financial disclosure, is suspected to be hiding assets, or if there is a restraining order in place, your matter may be headed to court. Or, perhaps, you and your former spouse attempted mediation but were unwilling or unable to agree on a particular issue.
Prepare for paperwork
If you are initiating litigation, you and your lawyer file an application, which involves a set of forms and strict timelines. Your former spouse will be served with this application and must file an answer within 30 days. The applicant then gets to decide if they will file a reply, which is due within 10 days of filing an answer.
Along with these documents, you will also have to file a sworn financial statement detailing your assets, debts, income and expenses. If there are issues related to the custody and access of children, you will have to fill out an affidavit that sets out the needs of the children and your plans for them.
Provided there are no urgent matters and the pleadings are closed, you can then obtain a case conference date.
Case conference with a judge
Depending on your jurisdiction, it could be three to six months before you attend the case conference. This step in the litigation process involves an appearance before a judge — either in person or on a video call.
The main objectives of the case conference are:
- to determine if some or all your issues can be settled and
- to ensure parties have exchanged all the financial and other necessary documents before the issues can be dealt with at a motion on a temporary basis or moved forward to trial to resolve them on a final basis.
The judge will review the information that has been provided and listen to what both parties have to say. While the judge may make recommendations or provide guidance, nothing is binding, unless the parties agree. However, if your ex-spouse refuses to disclose information or attempts to hide financial assets, the judge can make orders against them.
Following the case conference, the judge makes an endorsement to show that the event took place and any orders made. If there are non-urgent motions, this is the point in the litigation process where they would be brought forward. For example, you might bring a motion to ask the court to order your former spouse to pay temporary child support. Again, some jurisdictions have a very long wait for motions — say, six to 10 months — while you can get one in a matter of weeks in others. If the matters are urgent, you can request an urgent motion date, but each jurisdiction will have different rules and timelines to accommodate the request.
Settlement conference
The court will then assign a settlement conference date, and, at this point, all the financial disclosure and valuations should have been done and you should be in a position to exchange offers to settle. By now, you are at the stage where you have a very good idea of your position regarding hard numbers and ranges, as does the other party.
Each conference is an opportunity for parties to resolve all or some of the issues before moving to trial. The judge is there to help narrow the issues and find common ground, but if you and your former spouse are still at a stalemate, you will move forward to a trial management conference or trial scheduling conference.
Going to trial
At this point, you will be put on the trial list if there are sittings in your jurisdiction or you will be given a start date if there are no trial sittings in your jurisdiction. Again, depending on where your matter is being heard, you can wait up to a year to be put on the trial list.
While most cases settle, a small percentage go to trial for a final resolution. During a trial, a judge will deal with any preliminary or procedural matters, and then the parties and witnesses take turns giving evidence under direct or cross-examination. Trials can last days or weeks, and the amount of “hurry up and wait” involved throughout the litigation process can be extremely stressful.
It’s important to highlight that no case is ever a “slam dunk.” Your chances of success are basically 50/50 because of the human element involved. You do not know what judge you will get, and you do not know how they may interpret the facts or the law. Therefore, family dispute resolution may be preferred because you decide who you hire to help you resolve your issues and there is more flexibility built into the process and outcome.
And remember, litigation and alternative dispute resolution are not mutually exclusive. For example, even if you have commenced litigation, you can mediate some issues outside the courtroom. It’s important that your family lawyer understands what is important to you and highlights the different options available to achieve the best possible outcome.
If you are facing a separation or divorce and want to discuss your options, schedule a consultation with me. I would be happy to help you.
Part 1: The pros and cons of family dispute resolution
By Giovanna Cacciola
When separating spouses cannot see eye to eye on crucial issues like parenting time, support, or how they will divide their assets, they can settle the dispute in court or through alternative dispute resolution (ADR).
Deciding which path to take depends on several factors, including what stage you are at in your separation, if there is high conflict or a power imbalance between you and your former spouse, and your (and your former spouse’s) willingness to negotiate. While ADR, such as mediation, is often touted as the quicker, cheaper way to reach a mutually agreeable resolution, that is not always the case.
In part one of this two-part series, we will explore the advantages and disadvantages of alternative dispute resolution in family law cases.
What is family dispute resolution?
ADR refers to the alternative ways of resolving a dispute outside of a courtroom. When it comes to separation and divorce, mediation is probably the most popular and well-known family dispute resolution method. In mediation, you and your former partner work with a neutral third party to reach a mutually agreeable resolution.
The mediator does not make decisions for you, but instead assists parties in working through their issues to reach an agreement. Depending on the mediator you choose, your lawyers can be an integral part of the process, or they can just help you with providing independent legal advice for the final separation agreement based on the agreement that you arrived at in mediation.
While family law mediation is not mandatory in Ontario, lawyers are obligated under the Divorce Act to encourage clients to try a dispute resolution process, unless it is inappropriate. Due to court backlogs in certain jurisdictions, some courts are becoming more stringent that parties attempt mediation to resolve issues, especially parenting-related matters.
Arbitration is similar in that it also a neutral third party who helps parties resolve disputed issues. However, it functions more as a private trial (complete with live evidence, documentation, and a court reporter being present), and the outcome is legally binding. Arbitration can follow the mediation, or can be a standalone proceeding, and the mediator and arbitrator can be the same person, or not.
When I first meet with a client, the dispute resolution method I might recommend depends on what stage they are at in their separation. For example, litigation may be the best route forward if the other side refuses to provide basic disclosure of financial information or if there is a restraining order in place.
That said, if there is a power imbalance between parties, mediation (and arbitration) can be structured to help even out the playing field. For example, an in-person mediation can have staggered arrival and departure times, so there’s no contact between parties before or after the session. You and your former spouse can even be in separate rooms with the mediator shuttling back and forth.
A cheaper way?
Of course, you and your former spouse must agree on mediation and select a mediator. There are some free and sliding-scale services where you do not have the option of choosing your mediator. While a cost saving is associated with free or sliding-scale services, your mediator may be trained in mediation but not be a family law lawyer.
If your divorce involves complex financial issues, you might be more comfortable working with someone who has a family law background and can advise you on your rights and obligations. It will be more expensive, but you are paying for that experience.
If the stars are aligned, financial disclosure has been exchanged, and both parties have an idea of within what range they are willing to settle, the preparation and a one-day attendance at mediation will cost much less than litigation. However, if you or your former spouse come to mediation unprepared or unwilling to negotiate, the process can become quite expensive and drawn out.
If a file is high-conflict and parties cannot settle, entering into mediation/arbitration can be just as expensive as litigation; remember arbitration is a private trial except you and your spouse are paying the cost of the arbitrator. You will have to pay your lawyer’s fees, (usually) half of the mediator/arbitrator’s fees, and costs can be reapportioned by the arbitrator. If you lose, you may have to pay all the arbitrator’s fees and a portion of the other party’s legal fees (which is similar to what could happen if you lose in court).
While the mediation/arbitration price tag could be equal to that for litigation, the significant difference is your matter could be completed in three to six months instead of going through the court process for two to three years as a result of the COVID-related backlogs. So, while there might not be cost savings per se, there are significant time savings. Whether your outcome is good or bad in arbitration, you will have finality and the ability to move on, which is worth its weight in gold for some people.
Preparation is key
If you want mediation or arbitration to be successful, both parties should have sworn financial statements and financial disclosure. Even if you are not 100 per cent comfortable with what the other side has provided, you must be comfortable enough to come to the bargaining table in good faith. If you are not, the first step in the mediation process is to be clear that you want more disclosure.
Net family property statements should be completed to determine the equalization payment owing by one part to the other. If you are working with a skilled mediator — and there are no outstanding valuation issues — there should be a way to bridge the gap on all property issues and come up with an equalization payment amount in short order. This could be done in a one morning mediation session.
In terms of spousal support and child support, everyone must complete income disclosure and prepare income calculations in advance. This may require income reports to be completed by an expert in the field if one of the parties is self-employed. This should be done before the first mediation session, or you will have to return for a second mediation session to address the income issue.
Further, figure out the appropriate amount of child support and range of spousal support so you can argue why you think you should, for example, pay the lower range or receive the higher range in support. The budget portion of your client’s Financial Statement should be completed as accurately as possible as this will help the parties and mediator in figuring out what is the appropriate range of support in each case.
In general, no matter the process you choose financial disclosure is the key to moving matters forward and settling.
Stay tuned for part 2, where I will explore what happens when a family law matter goes to court.
Summer travel plans for divorced parents: a primer
By Giovanna Cacciola
With the end of the school year fast approaching, many families are preparing for a summer full of outdoor activities, camps and travel. And after two years of pandemic-related travel restrictions and mandates, parents may be planning an out-of-country trip for the first time in a while.
If you are a separated or divorced parent, having a solid parenting plan and a pattern will help ensure your family’s summer vacation schedule runs as smoothly as possible.
Plan ahead
Try to have a plan and a pattern every year to keep things fair and avoid confusion. It may help to draft parenting time a year in advance, especially if parents have alternating holidays or long weekends. Because activities such as summer camp often need to be booked months in advance, you might be scheduling for next summer in the fall.
If there is no court order or a separation agreement that spells out how vacation time is to be divided, you and your former partner need to negotiate well in advance. Canadian summers are short, and it can sometimes be challenging to agree on which weeks or long weekends each parent will have. Start the discussions early, particularly if there will be other considerations, such as extracurricular activities, summer camps, grandparent visits, etc. With so many moving parts, parties should try to remain flexible and fair when coordinating vacation time.
That said, if you want to book airline tickets for a summer getaway and there is no vacation parenting plan in place and the other side has not consented to the trip in advance, make sure there is a refund policy just in case.
Another important reason to plan ahead is if a particular event is non-negotiable or cannot easily be rebooked, you will need time to bring a motion to the court to allow you to travel without the other parent’s consent. You will need adequate leeway time for your lawyer to draft materials and get into court. Of course, this timeline will depend on where you live as waiting times for motions may be longer or shorter depending on the jurisdiction in which your children live.
Travel permissions and documents
Whether you are divorced or not, a parent travelling alone with their children needs a notarized consent letter from the other parent. The letter demonstrates that your children have permission to travel abroad from parents or guardians who are not accompanying them. While a consent letter is not a legal requirement if travelling within Canada, it can simplify travel for you and your children.
Some countries might not ask for the travel consent letter, but others take it very seriously. Canadian authorities may ask for it on your return to the country, including travelling over the border by car. You never know who may ask for it and when, so it is better to be safe than sorry.
Having valid passports is critical if you plan to travel outside of Canada with your children. Unfortunately, passport offices are still dealing with a surge of applications and longer processing times. Earlier this month, Federal Minister Karina Gould told CTV News that most in-person applications take around 10 days to process. In contrast, the mail-in process has been a more significant challenge, taking approximately 45 business days.
Although the timeline is unclear when passport delays could be resolved, Service Canada has published approximate passport wait times to help clients prepare for their visit to a passport office.
Review your children’s passports to ensure they are valid, keeping in mind countries have different entry requirements. For example, if you are planning to travel to Spain, your children’s passports must be valid three months beyond the expected stay in the country. Research where you are going and the passport requirements for that jurisdiction.
When negotiating a parenting plan or asking for court orders in relation to parenting, it is essential to address whether you need both parents to sign the passport application or just one, as this will have to be presented to Service Canada. You and your former spouse should determine:
- What other documents are required to apply for a child’s passport?
- Who is going to pay the cost?
- Who is going to hold onto the passport?
Parents should also agree to exchange important identification and health care documents for the children before a trip.
When conflict arises
Suppose a scheduling conflict arises or your plans change. In that case, you should first send a very polite email to the other parent asking them to please accommodate and switch weeks, for example. If you are asking to trade weeks and there is no camp or plans to travel already, it would be expected that the other parent should cooperate. If they don’t agree, then you should contact your lawyer.
However, it becomes more complicated if that parent already has plans with the children. It may not be reasonable to expect them to change their plans because you need a last-minute favour.
That said, cooperating as co-parents — especially during the summer — is in everyone’s best interests. If you have to fight tooth and nail with your former spouse to go on your summer vacation, it will not be as enjoyable for you or your children and will be memorable for the wrong reasons.
If you and your former spouse share parenting responsibilities and are struggling with maintaining a consistent and fair schedule, schedule a consultation with me. I would be happy to help you explore your options.
Family violence tort provides new path to seek damages for domestic abuse
By Giovanna Cacciola and Alyssia Pascuzzi
In a significant development in family law, an Ontario judge ordered a husband to pay his former wife $150,000 in compensatory, aggravated and punitive damages for the abuse she experienced throughout the marriage.
In Ahluwalia v. Ahluwalia, Ontario Superior Court Justice Renu Mandhane has created a new tort of family violence that attempts to address the cumulative impact of an abusive marriage. A tort arises when there has been a breach of a recognized legal duty and where it is appropriate to claim damages.
Generally, the existing torts are focused on specific, harmful incidents. However, the new tort of family violence relates to the long-term, harmful patterns of conduct designed to control or terrorize. Other torts are often underused in family law, so we will see if this new tort will be claimed going forward.
The decision, in this case, examined family violence in divorce proceedings and further confirms that damages can be assessed and awarded for family violence that occurs from the first time the victim endured it to the end of a divorce proceeding.
The judge recognized “that making such a significant damage award is well-outside the normal boundaries of family law.” However, she noted that this was not a typical marriage and was characterized by a 16-year pattern of abuse, coercion and control.
While there is the risk that this landmark decision could act as an incentive for parties to make false accusations — which is already an issue in family law — Justice Mandhane states that the tort claim cannot be a series of bald assertions. It will be insufficient to point to an unhappy or dysfunctional relationship as a basis for liability in tort.
With that in mind, let’s take a closer look at the case, the tort of family violence and what this means for family law litigants going forward.
Facts of the case
The applicant father and respondent mother married in 1999 and separated in 2016. The parties immigrated to Canada in the early 2000s and have two children together, although the children have been estranged from the father since 2017.
During their divorce proceedings, the mother claimed the father was physically and mentally abusive throughout the marriage, recounting three incidents of physical violence endured in 2000, 2008 and 2013 and an overall pattern of emotional abuse and financial control.
The father “vehemently denied any physical abuse” and said the parties had “normal” disagreements and verbal arguments.
The mother amended her answer and claimed “general, exemplary and punitive damages for the physical and mental abuse” she suffered at the hands of the father. She argued that the three incidents of physical violence, coupled with his coercive and controlling behaviour, caused mental and physical harm for which she should be compensated in damages. She essentially pled the tort of family violence rather than the specific torts of assault, battery, or ion of emotional distress.
In his amended reply, the father again denied the family violence allegations, claiming that the parties separated over financial issues. He said they had joint accounts, and he was never controlling.
As the trial progressed, the judge noted that the parties had fundamentally different views on the proper framing of the tortious conduct at issue.
Issues for the court to consider
There were four issues that the court had to determine:
- Should the father be liable in damages for family violence?
- How much should the father pay in child support?
- How much should the father pay in spousal support?
- What is the final equalization payment owing?
In determining whether to consider the tort claim as part of these proceedings, the judge stated that while courts must be careful not to arm family law litigants to overly complicate the litigation through speculative and spurious tort claims, “family violence” is already relevant to the issue of parenting.
Citing Merrifield v. Canada, the judge noted that while “trial judges must be cautious about developing new foundations for liability, there is scope to do so where the interests are worthy of protection and the development is necessary to stay abreast of social change.”
The decision went on to say that new causes of action in tort can be created through re-interpretation of precedent, an extension of an existing cause of action, or the recognition of a new interest that warrants protection under civil law.
Justice Mandhane also wrote that allowing a family law litigant to pursue damages for family violence is an access-to-justice issue as it is unrealistic to expect a party to file both family and civil claims after the end of a violent relationship.
Elements of the tort of family violence
The proper starting point is the definition of “family violence” found in s. 2 of the Divorce Act to define the modes of liability underlying the new tort of family violence. Based on this definition, to establish liability on a civil standard, the plaintiff must prove that the conduct:
- is violent or threatening, or
- constitutes a pattern of coercive and controlling behaviour, or
- causes the plaintiff to fear for their own safety or that of another person.
To establish family violence, the plaintiff will have to prove on a balance of probabilities that a family member engaged in a pattern of conduct that included more than one incident of physical abuse, forcible confinement, sexual abuse, threats, harassment, stalking, failure to provide the necessaries of life, psychological abuse, financial abuse, or killing or harming an animal or property.
“The focus must be on the family member’s specific conduct, which must be particularized using specific examples. It will be insufficient and unfair for the plaintiff to simply rely on the pattern of conduct without pointing to any specific incidents,” the ruling states. “From a fairness perspective, the tort claim cannot be a series of bald assertions. The defendant must know the case to meet. Therefore, the trial judge must be satisfied that the plaintiff’s pleadings are sufficiently detailed to allow the defendant to respond.”
Damage award reflects pattern of control
In accepting the mother’s evidence, Justice Mandhane ruled that she is entitled to damages of $150,000.
“While this damage award is high when compared to other cases involving ‘spousal assault,’ it reflects the overall pattern of coercion and control at play in family violence matters,” the judge notes.
The $150,000 award was comprised of:
- $50,000 in compensatory damages in relation to the mother’s ongoing mental health disabilities and lost earning potential
- $50,000 in aggravated damages due to the overall pattern of coercion and control and the apparent breach of trust; and
- $50,000 in punitive damages as a strong condemnation of the father’s actions.
Although recent reforms to the Divorce Act include a new section on family violence in the context of a child’s best interests, it does not provide a victim of abuse with a direct avenue to obtain compensation for harms that flow from family violence. This new tort is an attempt to remedy that. While it is not clear if the father will appeal this decision, it will be interesting to see how courts will interpret this decision in the future.
The essentials of financial disclosure in a family law matter
By Giovanna Cacciola
Providing detailed information about your finances early can help avoid disagreements between the parties and save money on legal fees in a family law case.
Disclosing financial information is one of the most contentious issues in family law matters. Turning over banking transactions and other details about your finances is an onerous obligation that can feel invasive. For some, it can be anxiety-inducing and leave you feeling exposed and vulnerable.
Still, there’s no way around financial disclosure — the exchange of this kind of information is a fundamental part of resolving financial issues arising out of separation. Failing to do so will only cause you problems.
For example, if you don’t provide all the details about your finances and it’s discovered before a final decision on your case, it could negatively affect your credibility and the outcome of the matter. If you refuse to disclose and a judge says you should have, the court can make negative assumptions (assume the worst-case scenario) about you and your finances in the absence of the required information.
Non-disclosure the ‘cancer’ of litigation
Failing to disclose assets or liabilities can also be grounds to set aside an agreement and review the circumstances of your case again.
The issues around financial disclosure have long been front and centre in family law courtrooms across the country and beyond. The resistance to disclosing this type of information has been described as the “cancer” of family law litigation, most recently here by Justice Russell Brown of the Supreme Court of Canada.
Justice C. William Hourigan, writing for the Court of Appeal for Ontario in a case found here, stated that “nondisclosure metastasizes and impacts all participants in the family law process.”
Financial disclosure is providing the other party and the court with financial information and documentation on certain dates with respect to your:
- income (how much money you make)
- expenses (how much you spend on bills such as rent and childcare)
- assets (how much property or other valuables you own)
- debts (how much you owe)
You are required to disclose this kind of information in matters involving:
- child support
- spousal support
- claims relating to property (for equalization calculations)
Details matter
The information around financial disclosure is set out in the forms you must fill out in a family law matter. These forms are long, detailed and can leave you feeling overwhelmed. Judges need that level of detail to make decisions about your case. Lawyers and separated parties need this information so that they can enter into an agreement that is fair to both parties and is in line with the law.
The two types of Financial Statements you may have to fill out in a family court matter are:
- Form 13: Financial Statement (Support Claims): Use this form if your case involves child support or spousal support, but not property issues. Do not use this form if you are making a claim regarding property or debts.
- Form 13.1: Financial Statement (Property and Support Claims): Use this form if your case involves claims regarding property or debts (whether or not your case also involves support issues).
You need these documents to negotiate a settlement, to mediate and to go to court. Your lawyers will often send you the form(s) you need to complete once you have retained their services. Because disclosure is such a vital aspect of family law matters, the first thing to do after retaining a lawyer is to start working on the financial statement form(s).
It’s important to note that you don’t have to be married to the other party to be required to disclose financial information in a family law matter. The rules also apply to couples who are common law.
Organize important documents
Some people have a perfectly organized filing system for important documents, but most have to do a bit of digging to find the required information, including bank statements, loan agreements and mortgage documents for any property.
If you haven’t filed your income tax return with the Canada Revenue Agency (CRA), it may cause delays in moving your case forward while you file your return. You need the CRA notice of assessment to start a family law court case if there are support issues involved in your matter.
As well, if you have an interest in a company, it may complicate matters. With your lawyer’s assistance, you may need to hire a chartered business valuator to determine the value of your interest in the business and to determine how much income you earn from the company.
Despite any complexities that may occur during the financial disclosure process, the golden rule should always be to provide information in a timely and fulsome manner to avoid problems down the road.
If you are facing a separation or divorce and would like to discuss your options, schedule a consultation with me. I would be happy to help you.
How to reduce legal fees in your family law matter
By Giovanna Cacciola
Going through a separation or divorce can be stressful and expensive but there are ways you can save money on your legal fees.
In any family law matter, consulting a lawyer is often an important part of the process. But how can you keep it cost-effective while ensuring you get the legal advice you need?
First, it’s important to have a basic understanding of legal fees and how they are charged. Lawyers generally charge fees based on an hourly rate and the time it takes to handle your matter. This means we charge for our time to speak with you during in-person meetings, on the telephone, or to answer emails.
Make sure to ask your lawyer for details about their fees early in the process. Beyond that, there are things you can do to control your legal costs. Here are my top 10 recommendations:
- Organize your documents. Before you pick up the phone to call a lawyer for advice, be aware that you will have to provide them with your name, your spouse’s name and a copy of identification, such as your driver’s licence.
Some people are reluctant to provide these details right away, but Law Society of Ontario rules require that lawyers gather this type of information to provide service. You will also have to provide some basic financial information, including income tax returns, your spouse’s income, and copies of current bank statements.
Sometimes in emergency family law matters, it isn’t possible to have all of these documents at the ready. However, if it isn’t an urgent situation, having such basic details readily available will save time, and ultimately money. - Seek legal advice early. Many people will reach out to a lawyer before they separate, but there is no set timeline. A lawyer can provide advice anytime – before marriage, at any point during the marriage and even years after separation and divorce.
One rule of thumb on when it’s time to consult with a lawyer is if you have concerns about your relationship relating to your rights and obligations. A lawyer can help you understand your situation and whether you need to take legal steps to protect yourself, for example through a marriage contract (sometimes colloquially called a prenup). - Ask about costs before booking your first consultation. Some, but not all, lawyers offer free consultations so it’s important to ask before you book a meeting.
- Follow your lawyer’s lead on how to communicate with them. If your lawyer tells you the easiest way to reach them is via email, use that method instead of scheduling a call. Booking a call or meeting is not always necessary, or time-efficient, when the relevant information can be exchanged in an email.
- Be as thorough as possible when communicating with your lawyer via email. When you send an email to your counsel, make sure it includes all relevant information to lessen the need for follow up messages.
- Respond to lawyer requests in a timely manner. Lawyers have deadlines to meet in your case to try to move your matter forward either in Court or by settlement. Responding to requests from your counsel will help them do their jobs. If they have to follow up with you multiple times to get the information they need to help you, it will end up costing you more and creating rush situations that could have been avoided.
- Set up a new email specifically for communicating with your lawyer. Create a new account with passwords that aren’t easily accessed (or easily guessed) by your spouse. Having a separate email account with your lawyer will ensure that all the communications are easily accessed and saved.
- Batch your questions/concerns. Unless it’s urgent, don’t send an email every time you have a question or concern. Instead, compile a list and send it in a single message or save it for your next meeting.
- Get the support you need from the appropriate professionals. Going through a divorce is a difficult, emotional time to be sure. People often benefit from the support of various professionals, but it’s important not to confuse their roles: your lawyer is not your therapist and vice versa.
Wanting to speak with your lawyer for anything other than legal advice is not in your financial interests. While your family lawyer can help you find professionals to provide other supports, their expertise is limited to giving legal advice. Lawyers are people too and want to help you through your difficult time, but it is in your best interests to hire a therapist if you need one. - Speak candidly with your lawyer from day one so there are no surprises. People often have the urge to withhold embarrassing details about their situation, but it’s important to tell your lawyer everything. They will be in a much better position to advocate for your interests if they understand the reality of your situation.
If you have any skeletons in your closet, tell your lawyer upfront so the circumstances can be addressed. Otherwise, trying to backtrack or fix issues later can be more expensive — or not possible at all.