St. Thomas Divorce & Family Law Blog

Binding Judicial Dispute Resolution Recently, I attended an opening of the courts ceremony in London where judges of the Ontario Court of Justice and the Superior Court of Justice were speaking. The local administrative judge for London updated the audience and said that the London family court branch would soon begin piloting an innovative way to move certain cases toward resolution.  Photo credit: Tyler Lastovich It’s called binding judicial dispute resolution (Binding JDR). It promises to be a helpful option for the right type of case to help move things along and clear up the backlog.  So far, what I know is that Binding JDR combines elements of a settlement conference and elements of a trial. The process is pursued in the courts with a judge that hears the settlement conference, and this same judge would be the one who hears the modified trial.  I wrote about settlement conferences in a previous post. This project has been tried with success in other regions in...

The Difference between “Retroactive” and “Arrears” Decisions about child support or spousal support are usually forward looking. However, a court may also be asked to look backwards to deal with support that should have been paid. There are two scenarios that may apply to your situation: (1) arrears of support, and (2) retroactive support. Arrears and retroactivity apply to child support and spousal support. Photo credit: Nataliya Vaitkevich Arrears Arrears of support are those amounts that a person failed to pay but was required to do so by a contract (e.g., separation agreement) or court order. Determining the precise amount of arrears is not always straightforward. The amount depends on how long the arrears were accumulating, the amount of each payment and the frequency. Arrears: A Real-life Example In one case, a father agreed in a separation agreement signed in 2008 that he would pay child support of $10,000 per year for his two children. Except for a $5,000 lump sum, however, he ...

Your Dear Pet and Family Law  You've had a long and hard day. As soon as you walk in the door, there's your dog there to great you and so happy to see you. It's like therapy. But when two people separate, they will have to negotiate who gets certain property in the division or equalization of their assets. If they can’t agree, a court will decide.  The question comes up, Who gets the dog? If there’s more than one, Who gets which dog? And so on for whatever beloved pet or animal that we have had during the relationship. We have such a strong emotional connection with our pets. This is one more stressful aspect to layer on to the other aspects of separation and divorce that people have to deal with. The emotional support that one gets from their pet may be a major coping mechanism to see them through the divorce. Legal Status of Animals in Ontario In the eyes of the law, pets are personal property. There are laws that govern how we are to treat pets or how many we are permitt...

Family Law Court Process - The Settlement Conference In previous articles, I wrote about what you could expect at early stages of the family law court process. The procedure is that after a case conference and possibly a motion, another pre-trial hearing called a settlement conference is scheduled. At times a settlement conference can be combined with a case conference, but often a settlement conference will be held separately and after all disclosure has been made. A matter cannot proceed to trial without having held a settlement conference. What Can I Expect at My Settlement Conference? A settlement conference is intended to promote resolution of the issues after all financial disclosure and reporting has been made to the parties and the court. With the benefit of the entire picture, a judge at a settlement conference is in a position to provide a judicial opinion that gives each party a solid assessment of the strengths and weaknesses...

Step 4:  What Is a Case Conference? After you have started a court action in family law, the first major appearance that you can expect to have is a pre-trial hearing called a case conference. The case conference has been called the most important step in family law litigation. This hearing is held in front of a judge and allows both sides, either self-represented or with their lawyers, to obtain orders on procedural matters and possibly hear a judge’s view of the case at an early stage.  While a judge may offer preliminary opinions on the issues, no binding decision will be made on a substantive issue in your case. Obtaining a judge’s feedback can be helpful because it allows the parties to see their arguments from a different point of view and possibly reassess the strength of their claims. In turn, this may help to resolve matters through negotiation or mediation. Photo credit: Diane Webb What Can I Expect at My Case Co...

Changing Child Support In a previous post I wrote about a motion to change. A person would start a court proceeding with a motion to change when they already have a separation agreement with an estranged or ex-spouse, but they want to change something that was agreed to.  In Ontario, the law allows for a change if the payor has experienced a major change in circumstances, such as reduced income or debilitating health problem that prevents them from working as they used to. Kevin Costner Case In the r ecent decision in California , actor Kevin Costner apparently had a marriage contract signed before he married his estranged wife, Christine Baumgartner. In their divorce process , the two disagreed about the amount of child support he should continue paying for their three children. Earlier in the court process, a judge awarded the amount of US$129,000 on a temporary basis. Recently, the pair returned to court to get a final decision. Ms. Baumgartner wanted US$161,592. In the end, t...

Family Law Court Process: The Motion A motion is a litigation tool that helps you manage the court process by allowing you to potentially get a result before a trial. The type of order you seek from a court on a motion is generally an order that temporarily deals with a major issue. It may be the real issue that brought you to court in the first place. If you succeed in your motion, the decision will usually have temporary effect. It is possible, however, that even though the motion may be in advance of a trial, the decision that you want the judge to make could permanently decide the issue. For example, in a vaccination dispute where one parent wants to vaccinate the child(ren) and the other wants to wait, if the pro-vaccination parent is given the decision making power and uses it, this would permanently deal with the matter because they can't un-vaccinate the child afterward. Motions are a major aspect of court proceedings and require much preparation on the ...

The Family Law Court Process: Step 3 - The Reply A possible third step in the family law or divorce court process is the Reply. I say it's possible because a Reply is made only when the responding person makes an Answer that raises new claims. In that case, the applicant can 'reply' to only the new claims or issues. Similar to the application and the answer, the Reply will set out the applicant's response to the new issue(s) raised by the respondent. But if the responding person does not raise new issues in his or her Answer, the applicant does not make a Reply. A Reply can be lengthy and your family law lawyer will write the response with your input. The costs associated with making a Reply are approximately the same as the other main documents -- estimated $3,500 to $5,000 plus tax -- depending on the length of the response and the complexity of gathering information needed to respond to the new claims. Photo credit: Olya Harytovich A Reply can be made only by the app...

Choose the Right Lawyer for You A time will probably come when you will need or should consult with a family law / divorce lawyer. It could be as you look ahead at the start of a relationship to ensure that your plans for your property will come to fruition. Or something just happened in your relationship and you need some immediate advice and help to understand what your options are and what to do next. Family law involves different legal areas rolled up into one practice that can serve you and your family for years. Many people are intimidated by lawyers and searching for one because the terminology is different from what they're used to. They may also see it as being too expensive for them. But it doesn't have to be, and the money that you do spend on a consultation is generally well worth it if you've screened your candidates well.  At the end of the day, your ability to pay and the lawyer's rates are an important part of your decision making. Part...

Marriage Contracts These contracts are for those who are planning to get married (pre-nuptial) or are already married (post-nuptial). In Ontario law we only have a 'marriage contract,' and this can be signed by a couple either before or after their wedding.  This type of contract allows a couple to agree on property or support. They can agree on different terms that what the default law may dictate in the event of a breakdown of the marriage.  For example, Ontario's Family Law Act has special rules for dividing what is called the "matrimonial home." Each spouse receives an equal share, regardless of who paid more of the expenses such as the down payment or mortgage loan.  But with a marriage contract, a couple can agree to a different division of the matrimonial home's value if the relationship were to end. This contracting power is especially valuable to those who have already been divorced once or are on their second or third marriage and approaching retire...

Family Law Court Process - Answer If you've made an application or a motion to change, the other party will have to make an answer ("Form 10 Answer"). Alternatively, if you've been served with an application or motion to change, you will have to make an answer, unless you do not wish to defend your position. In that case, the other party can obtain a summary hearing to deal with his or her claims more quickly against you. In most cases an answer is made. Think of an answer as the family law version of a statement of defence. It responds to the claims made in the application or motion to change. It alleges new facts that the responding party is using to support its position. The answer also has a section in which the responding party can make claims of its own with alleged facts to support those new claims. If you are the respondent (the one making the answer), you'll generally have to also prepare a financial statement. In family law, even if property is not in di...

Family Law Court Process: Motion to Change Another way your family law lawyer may start your court process is with a motion to change. This tool is used when you already have a domestic contract with another person. This might be a separation agreement. Or you may have a court order from a previous matter that sets out how much someone must pay in spousal support or child support.  As the name indicates, this litigation tool allows you to ask the court to change, or vary, a term in an existing contract or an order of the court based on significant changes to your circumstances or ability to pay. The motion to change is similar to the application in that you will have to discuss with your lawyer what requests you are making of the court and the facts and supporting documents that you are using to bolster your request. Spousal Support and Periodic (Monthly) Payments If you have been receiving spousal support on a monthly basis or child support for your child(ren), you may be brought ...

Family Law Court Process: The Application If you start litigation in your family law matter, or if you are served with a court application or motion to change, there are several major steps along the road toward a judicial decision: Step 1: The Application Unless you have a court order or a signed contract, the way in which you would begin the court process is through an application. In discussion with your lawyer, you would decide what claim(s) to make and list the facts that you intend to rely on to support the claim(s).  If you are making claims that involve support or property, you will also have to prepare a financial statement that accompanies the application. Your lawyer will help you identify which type of financial statement and to gather the required supporting documents, which we generally call "disclosure." If your application includes a claim for decision making responsibility, you will also have to swear to a document called an affidavit for parenting matters, w...

Marriage Contracts These contracts are for those who are planning to get married (pre-) or are already married (post-nuptial). In Ontario law, we only have a 'marriage contract,' and this can be signed by a couple before or after their wedding.  Pre-nup. or Post-nup? From movies and television we often hear the term pre-nuptial agreement, so there is the mistaken belief out there that these types of protection contracts can only be signed before two people get married. In fact, you can also sign it after the wedding. This type of contract allows a couple to agree on property or support. They can agree on different terms than what the default law may require. For example, Ontario's Family Law Act has special rules for dividing what is called the "matrimonial home." Each spouse receives an equal share, regardless of who paid more of the expenses such as the down payment or mortgage loan.  But with a marriage contract, a couple can agree to a different division of t...