Family Law

Family law is possibly the most complex and difficult areas of the law that most people will ever be involved in. No web site and nobody else's experience or case can possibly answer questions in any particular file. This area of the law changes very quickly and is very fact sensitive. Two cases which may seem identical may be very different in ways which are subtle but important from a legal perspective.

Nothing on this web site is legal advice. You should speak with a family law lawyer before deciding what to do in your particular case.

The forms linked to from this page are in Word format so that you can complete them on your computer. If you do not have Word installed on your computer, you should be able to view and access the files using the Word Viewer which you can download from Microsoft's web site by following this link. The forms are also available in .PDF format from the Ontario Government's "Ontario Court Forms" family law forms website, which you can find here.

How family law matters can be resolved

There are a number of different approaches to resolving family law matters. Only one approach involves going to Court (litigation). As long as both parties are willing to be reasonable, there is no need to have issues like child support, custody, access, spousal support or equalization of net family property brought before a Judge for a decision. These are all issues which can be settled out of Court with the assistance of family law lawyers.

Issues of custody, access, child support, spousal support and equalization of net family property can all be resolved outside of Court through Collaborative Family Law, Mediation, Arbitration,or Negotiation.

Sometimes, mediation is used to open the lines of communication and make sure the parties are each hearing what the other is saying. Mediation generally does not lead to a legally binding separation agreement, but rather to a memorandum of understanding which the family lawyers will use as a basis for a separation agreement.

The only issue in family law which requries the involvement of a Court and a Judge is the granting of a Divorce. All other issues can, if the parties cooperate and work with each other, be resolved outisde of Court. If it is needed, a Divorce can be done on consent quickly and relatively inexpensively - but the granting of a Divorce may affect your rights in other aspects of family law.

Collaborative Family Law

Collaborative Family Law is a relatively new approach to resolving family law matters, and is what it sounds like. Parties work together to find a resolution which will work for them.

Collaborative Family Law allows you to keep control of the process and the results and build your own lasting legal agreement covering all aspects of your separation.

Lawyers are still invovled, but the parties and lawyers must start the process off with a promise that they are not going to go to Court to fight about anything. There is more information about Collaborative Family Law on our Collaborative Family Law specific page and from the web site for the Collaborative Family Law Kingston web page.

The focus of Collaborative Family Law is on finding a solution to all issues between them, not on each enforcing their rights - which does not mean that rights do not enter into the discussion. The Collaborative Lawyers will each inform their client of what that client's rights are, will help find solutions to any issues or problems and will work together to turn the final agreement into a formal, legally binding Separation Agreement.

It is not unusual for some Family Court Forms, such as the Financial Statement in Form 13.1 to be used during a Collaborative Family Law file.

When the Collaborative Family Law process works it generally works in less time, with less stress for the Parties and at less cost than any other process.

All of the lawyers involved in a Collaborative Family Law file must have completed specific training in Collaborative Family Law. Those lawyers, and the parties, must all agree that Collaborative Family Law will be used to resolve their matter, and everyone must sign a contract, called a "Participation Agreement" setting out how collaborative family law process will work in their case.

While a "Participation Agreement" can be customized, the core elements of Collaborative Family Law must be incorporated including:

• A commitment to not go to Court to argue any aspect of the case - the parties can still go to court provided they are not arguing about anything (to get a Divorce, for example)
• An agreement to not keep secrets or take advantage of any mistake(s) the other side might make
• An agreement that if the matter cannot be resolved by the Collaborative process, nothing (with a few exceptions) said, produced, or suggested as part of the Collaborative Process can be used in Court
• An agreement that the lawyers involved in the Collaborative process (and their firms) will not represent their clients if the matter does go to Court

Mediation

Mediation involves all parties sitting down with a neutral third party - a mediator - to openly discuss their issues and work toward a general agreement in the form of a "Memorandum of Understanding" - a document which can then be taken to lawyers to be used as the basis of a legally binding Separation Agreement.

Mediators are not necessarily qualified as lawyers, and even if they are lawyers they are not acting as lawyers and cannot advise or represent either party. Each party to a mediation should retain their own lawyer to help them turn the memorandum of understanding into a formal separation agreement.

If the parties involved are not able to communicate effectively (for example, one or both parties are simply not hearing what the other is saying), mediation can help get the lines of communication opened. Without effective communication, there is no real chance for achieving a settlement.

Arbitration

Arbitration is, in essence, a private court system. The parties choose a qualified arbitrator and between themselves and the arbitrator decide what the process will be for resolving their issues. Parties to an arbitration can choose the decision maker and the procedure to be used - but they also pay the arbitrator and incur other costs which would not be incurred in litigation.

The arbitrator will often act as a mediator to help the parties reach an agreement, but retains the power to impose a decision if the parties cannot agree. Arbitration can be either binding (if the arbitrator makes a decision the parties are stuck with that decision, like it or not, much like a Judge's decision) or non-binding (if the arbitrator makes a decision, the parties are free to ignore it). In Ontario, arbitration is governed by the arbitration act. There are some things an arbitrator cannot do (such as grant a Divorce), but they can resolve many issues, often more quickly than the court system.

Litigation - Arguing in Court

This is the method many people think of first, particularly when they think divorce or family lawyer. It is the only process that you can use without the other spouse's consent, but that is its only real advantage over any of the other methods of resolving family law matters. If this process is used from beginning to end it can take years to run its course.

Here is a list of some of the basic steps in a typical family court file:

• Initiating documents are completed, issued, served on the other party or parties and filed with the Court:
  • These documents may include one or more of the following:
    • An Application in Form 8 or in Form 8A (which gives the Court an overview of your case and what you want the Court to do)
    • A Financial Statement in either Form 13 or in Form 13.1 (depending on your particular case)
    • An Affidavit in Support of Claim for Custody or Access in Form 35.1

• Responding documents are prepared by the spouse who was served with the initiating documents, then served on the other spouse and filed with the Court within 30 days of when the Initiating documents were served on that spouse
  • Responding documents may include one or more of these documents:
  • • An Answer in Form 10
    • A Financial Statement in either Form 13 or in Form 13.1 (depending on your particular case), together with all related documents
    • An Affidavit in Support of Claim for Custody or Access in Form 35.1

• The Applicant spouse can respond to anything new the Respondant spouse raises in their Answer by serving and filing a Reply in Form 10A, if necessary.

• Both the Applicant and the Respondent will have to attend a Mandatory Information Program, which is a two hour presentation made by a lawyer and a social worker. This program will provide an overview of the Family Court process and encourage out of court settlement of some or all issues. The Court will make sure that Applicants and Respondents in any one case attend different Mandatory Information Program dates and times. If the date or time or location of the Mandatory Information Program Notice you are served with are not convenient for you, you can change the date, time or location to another date, time or location which is more convenient by calling the number given on the Notice. This program can also be completed on line where appropriate (for example, if one of the parties is outside Ontario).

• Once the Court has all of the initiating and responding documents, and the Parties have attended their Mandatory Information Programs, a Case Conference can be held. A case conference is a chance to have a discussion with a Judge as to what the issues are in your case, to work out how your case will be handled by the Court system, to get any orders made on procedural issues or that can be made on consent.

• For a Case Conference, each Party will need to complete more documents, usually including:
  • A Case Conference Brief in Form 17A
  • An updated Financial Statement in either Form 13 or in Form 13.1 (depending on your particular case)

• After a Case Conference, it is much easier to bring a Motion for a temporary Order (the Family Law Rules prevent bringing most motions until after a Case Conference has been held)
  • For a Motion, a Notice of Motion is used in either Form 14 or in Form 14B (there are many other forms for motions, but these are the most common)
  • The Motion is supported by one or more Affdiavit(s) in Form 14A

• The next step after a Case Conference is a Settlement Conference
  • There may be more than one Settlement Conference, or a Settlement Conference can be spread over two or more dates, depending on the particular case
  • For a Settlement Conference, each side must serve and file a Settlement Conference Brief in Form 17C
  • The Settlement Conference Brief must include an Offer to Settle some or all of the issues

• After the Settlement Conference(s) are done, the next step is a Trial Scheduling Endorsement Form Conference. For this conference, the parties are required to cooperate to complete part of a Trial Scheduling Endorsement Form. The presiding Judge will complete the rest of the form during the conference. Your trial date(s) may be set at this appearance.

• Depending on the case, when a date is set for the trial to start, a date may also be set for a Trial Management Conference.
  • If a Trial Management Conference is held, the Parties must serve and file a Trial Management Conference Brief in Form 17E (not all courts require this brief to be filed in all cases)

The general description of the steps in a Family Court matter is not meant to be anything other than a quick overview. There are other forms you may need, and many other Rules and Laws and Regulations which will affect how any particular case is dealt with. If you are going to Family Court, you should retain a lawyer to help you.

FAMILY LAW TERMS

Separation

Separation is not clearly defined. The definition is simple enough, but applying it to particular facts is not always easy. A legal separation begins when a couple lives "separate and apart with no reasonable prospect of reconciliation". That sounds simple enough, but it is possible to live separate and apart while living in the same house, and it is also possible to not be separate and apart when the two people are on opposite sides of the world.

The law encourages couples to get back together, so it is possible to live together in an attempt to reconcile, while still being considered legally separated.

Determining exactly when you became legally separated is more important if you are legally married than if you were living in a common law relationship; but determining the date of separation can have a large impact on your rights and obligations. It is generally best to discuss your particular facts with a lawyer who is acting only for you before you agree to anything (and certainly before you sign anything) involving legal separation or divorce.

Divorce

Divorce brings about the legal end of a marriage; the legal end of a marriage may be all that a Divorce actually is, but that is not all that it does or means.

The end of a marriage by the granting of a Divorce Order also raises issues of equalization of net family property, spousal support and possibly child support, custody and access.

The only reason anyone needs a Divorce is to get remarried.

If there is one or more "child of the marriage" (who may or may not have been the biological children of both parties) there will also be issues of child support, custody and access.

Custody of Minor Children

Custody of minor children is the right to be consulted in the making of major life decisions affecting the child. Decisions such as which school the child will attend, whether the child will receive religious training and in which religion, and medical decisions about the child are examples of custodial decisions.

Custody is not necessarily related to where the child lives.

Access

Access is the right to spend time with the child. Access can be clearly defined (e.g. 1:00 p.m. on the second Friday of the Month for 3 hours at a particular building to be supervised by a specific person or agency) or it can be vague (e.g. reasonable access on reasonable notice).

An "access parent" has additional rights, such as the right to access medical and educational records.

Child Support

Unless there is no "child of the marriage" (a legal term which applies if the parents are divorced) and no "child" (a legally defined term which applies if the parents are not divorced), there will be issues of child support to be settled. Generally, the Courts will use the Federal Child Support Guideline tables in determining who pays how much child support to whom. If there has been no divorce, the applicable Guidelines are the Ontario Child Support Guidelines, and the court will use those, but they are identical to the Federal Child Support Guidelines in substance and result.

The Ontario Ministry of the Attorney General has a web page which explains how the Federal Child Support Guidelines work in this Province.

There is more to the Child Support Guidelines than the tables - those only show the base support. Some expenses are also payable by the parents - over and above the Guideline Table amounts. These are called special or extraordinary expenses and are defined in section 7 of the Child Support Guidelines.

Spousal Support

Spousal support may be payable by one spouse to the other, and will be calculated based in part on the payor spouse's ability to pay and the payee spouse's need for support. The length of time for which spousal support will be payable usually depends on the length of the marriage and the amount of time it should reasonably take for the payee spouse to become financially independent again, but is also affected by other factors such as the age of the youngest child and whether child support is being paid or not.

There is no difference between married spouses and common law spouses on spousal support issues. Since common-law couples do not have property claims against each other in the same way as married spouses do, a slightly different form (a Financial Statement in Form 13 under the Family Law Rules) is used for financial disclosure between common law spouses.

Equalization of Net Family Property

If a married couple can not (or does not) agree about how to divide the property they own at the end of their marriage the law provides a method which will be used by default. The rules which make up the net family property equalization scheme are set out in the Family Law Act.

Equalization of Net Family Property does not apply to common-law couples. This does not mean that there can be no property claims or issues between common-law spouses, just that any such claims have to be dealt with outside the Equalization of Net Family Property system.

The information which is needed to allow for the determination of each spouse's net family property is gathered by having each spouse complete a Financial Statement in Form 13.1 under the Family Law Rules, including attaching all documents referred to in that form.

The Financial Statement in Form 13.1 uses three dates on which your interest in everything (including pensions, bank accounts, investments and debts) must be valued. The values to be used are based on what the item was worth as it was where it was on each of the three dates; not what it was purchased for, nor what it would cost to replace it, nor what it might be insured for.

The three dates on which each spouse's interest in everything must be valued are the following:

Date of marriage - self explanatory

Valuation date - this is the same as your separation date; the Financial Statement Forms use "Valuation Date" instead of "Separation Date"

Today - the day you fill out the form (If you're litigating, there will be many days for which you will have to fill out this form)

Once the value of all property is known as of all three relevant dates, once there is agreement as to what if any property is excluded, and once the date of separation is known, the equalization of net family property calculations are reasonably straight forward.