Trial Management Conferences

Trial Management Conferences

My apologies for the delay in this post. I will try to update this blog more regularly going forward.

Prior to the trial there is a trial management conference. At the trial management conference, the judge sets out a number of things that are to be done in preparation for the trial. For example:

(a) preparing exhibit books;
(b) how opening statements will be delivered;
(c) whether it is possible for the parties to agree to specific facts or specific documents;
(d) etc.

So if you’ve gone through your trial management conference, hopefully you have an idea of all things you have to get done prior to starting the trial. For example, there are deadlines by which you serve expert reports if you intend to call an expert to give opinion evidence at trial. There are also deadlines by which you must give formal notice pursuant to the Evidence Act that you intend to introduce certain types of evidence.

In addition, one needs to be mindful that there are timelines by which you must serve your materials in relation to objections or preliminary issues for the trial.

Hopefully, that is all set out at the trial management conference. If it is not, you will just have to know how to do it on your own. Once you have gotten through all of that, it is time for the Applicant to give his or her opening statement.

Check back in for my next blog post.

More

Pitfalls of Collaborative Family Law

Pitfalls of Collaborative Family Law

There is a lot of talk these days about what is called collaborative family law or collaborative divorce. So what do these terms mean, and how does collaborative family law work?

Basically, the idea is that each spouse hires a lawyer and their lawyers try to broker an agreement between the parties thereby avoiding the Court process.

While the theory sounds good, the reality is that this process should be avoided. Ultimately it can cost you more in terms of money and time, and you may have to resort to the Court process anyway.

If you do have to go to Court, then you have simply wasted your time and money, but achieved absolutely nothing. Worse yet, you don’t even get to keep the lawyer you were working with and who likely has intimate knowledge of your matter. So if you’ve ever heard of Square One, this is the place. The problem is you just spent time, effort, energy and money to get to Square One because you were chasing the ‘collaborative family law dream’.

Most collaborative family lawyers sign an agreement that if they cannot resolve the matter through negotiation, then they cannot be retained if the matter goes to Court. That means you must bring a new lawyer in and get him or her up to speed on your matter. And, of course, then entails additional legal fees. Ultimately, when the collaborative family law process fails (and it does more often then one might think), you simply end up frustrated and worse off financially than if you had commenced Court proceedings right from the start.

But we haven’t even come to the best reason to avoid the collaborative family law process.

The best reason to avoid the collaborative family law process is because of section 56(4) of the Ontario Family Law Act. This section enables a party to apply to the Court to set aside a separation agreement. So even if the collaborative family law works and you end up with an agreement, the reality is that the other side can apply to the Court to have that agreement set aside. Whether they would be successful or not is another matter, but who wants to take that risk? Especially when Court orders are much more difficult to get overturned on an application.

More

Family Law Trials

Family Law Trials

Only about 5 percent of family law matters commenced in Ontario actually make it all the way to trial. Approximately 95 percent settle before getting to trial. When a case does go to trial, usually it is because the facts of the case are unclear, or it is unclear how the law applies to those facts. In these cases often there are no previous Court decisions from other cases that can offer guidance on how the case should be resolved. Cases also go to trial when one or both parties are being unreasonable and have rejected good faith settlement offers, even when it would have made good sense for them to accept or at least make a counter offer. The last main reason that matters sometimes go to trial is because the legislation is worded in such a way that it is unclear. But this tends to happen very seldom because for the most part the legislation is drafted by professionals who have strong writing skills.

If your case is going to trial, it is absolutely crucial that you speak with a good family law lawyer beforehand, preferably one who has trial experience or who attended trials as an articling student. Another good reason to speak with a family law lawyer before going to trial is because you need to make sure that you are not the person who is being unreasonable. It is very easy to lose perspective when matters of children, money and emotion are all intertwined. Your family lawyer can see things more impartially than you can, and can give you an honest opinion on whether you are being sensible about things, or if the judge is likely going to find that you are unreasonable.

Trials are extremely expensive and if you lose, you could be ordered to pay the other side’s legal costs. You do not want to rush to trial in haste and then deal with the consequences afterwards. It is very important to plan things and contemplate carefully what the likely result of a trial will be. Speaking to a lawyer beforehand can help you get a grasp on where you are likely to stand after the dust has settled.

More

4 Parts of an Application

4 Parts of an Application

The Form 8 Application (General) has four parts for you to fill out. This is the most commonly used family law application. The ‘family history’ section is fairly straight forward because it is just the specific facts about where people live and how old they are. In the next stage of the Application, you will have to fill out check boxes to tell the Court what kind of order you are looking for. After that, in the third section of the Application you will have to write out the specific orders that you are asking for. The Court wants to see your specific requests when you get to that section of the Application. The last section of the Application is where you set out the facts explaining why it is important for the Court to make the orders that you are seeking. This is not the time to tell your whole story. The opportunity to do that will come later. All you need to do is set out the very basic facts that entitle you to the Court orders that you are asking for. When you fill out this section ideally you should speak with a lawyer because in order to get certain types of orders you need to write out certain facts. If you do not set out the right facts in your Application, then your Court proceedings can be dismissed.

More

How to Start A Family Law Proceeding

How to Start A Family Law Proceeding

How to Start A Family Law Proceeding – Part 1

The start a family court proceeding you need to file a document called an Application. An Application is a pleading, which means it is a document which sets out what is going to be covered in the family court proceedings. If you don’t ask for something in your Application, then you won’t be able to get it in Court. In order to start a family court proceeding in relation to children, the children must be living in the jurisdiction of the Court where you are starting the proceeding.

You have to give a lot of thought to what you are going to ask for because it can affect what other documents you have to file at the same time as your Application, and it also affects what court you are in. In Ontario there are three (3) courts to deal with family law matters. The Family Court of the Ontario Superior Court of Justice. In this court you can ask for any kind of family law order from custody to property division. However, not all parts of Ontario have this court. If you don’t have a Family Court of the Ontario Superior Court of Justice in your area, then you likely will live close to either the Ontario Court of Justice (which deals with child custody and access, spousal support, and name change issues) or the Superior Court of Justice (which deals with divorce and property matters). Many people find these different courts confusing.

Once you have filled out all your paperwork, you must take three copies of it to the Court office. You also need to put all your documents into an open and closable 3 hole punch binding. The Court clerk will look over your documents and make sure they have everything they need to. If they do, then the clerk will give you back two copies. One you keep, the other you serve on the other party (usually your ex-boyfriend or spouse). You must hire someone else to give the document to the other party because you are not allowed to do this yourself. Someone has to physically hand the documents over to the other party. You can’t just leave it in their mailbox or under their wind shield wiper.

Check back in about two weeks for Part 2.

More

When will my child support payments come to an end?

When will my child support payments come to an end?

The short answer to this question is when your child or children are no longer dependant on their parents. Often that means when they turn 18. In most provinces 18 is the age of majority which means the law presumes someone who is 18 is able to gain employment and support himself or herself. However, if the 18 year old is pursuing full time education, then your child support obligations will usually continue until they graduate.

There are other exceptions to the rule as well. Perhaps this fictional example will shed some light on things.

Let’s take Angela who is 19. Her father is Rudolph, a full time employee of a car manufacturer for over 20 years. Angela is attending university on a full time basis and lives with two room mates. She has a part time job and uses part of her earnings for her tuition. Is Angela eligible for child support?

The answer is yes. Angela is incapable of supporting herself because she is attending school. She is doing the best she can with her part time job. The manner in which Rudolph will pay support for Angela will be suited to her particular academic circumstances and living arrangements. For instance he will contribute to her school expenses and her living expenses rather than pay the table amount of child support. But there is no doubt that Angela is entitled to receive support from her father. The fact that she is over 18 is irrelevant because she is attending school full time.

Hopefully this example has helped to give some context to how child support payments work in Ontario. The manner in which child support will be paid for a child, and the amount of that support , will depend on a range of circumstances. These include the following:

1. what is this young adult doing – working, attending school?
2. where is he/she residing?
3. is he/she working and able to contribute to some of his/her own schooling costs?
4. is he/she enrolled in a reasonable program of study, with a reasonable prospect of graduating with a marketable skill?

This area of family law raises some important questions and many of the answers will depend on the particular circumstances of each case. I recommend anyone with questions make an appointment to see me or another family law lawyer to obtain legal advice on how these principles will apply to your case.

More

Cohabitation Agreements – What Are They?

Cohabitation Agreements – What Are They?

Ontario couples who decide to live together before marriage and purchase a house might consider completing what is called a a Cohabitation Agreement. In the United States these are called prenuptial agreements, but in Canada we refer to them as Cohabitation Agreements. It is an agreement that that spells out the rights of each person when it comes to the property. Ideally this should be done before making the purchase to avoid possible financial problems down the road. Since buying a home is generally the largest investment most individuals will ever make, they should take their time to review their rights before they make such a serious decision.

If unmarried couples don’t share the financial responsibility equally, they could be in for disputes farther down the road. A cohabitation agreement can prevent these disputes arising by outlining each person’s rights. Furthermore, these agreements can address topics such as how to manage disparities in payments, such as property taxes or a down payment. For a Cohabitation agreement to be binding it will need to be witnessed, should have a solicitor’s certificate proving the parties received independent legal advice before signing it, and all finances should be disclosed in it. If any of these are missing then the Court could render the agreement null and void.

While such an agreement might be seen by some as a difficult topic to discuss with their boyfriend or girlfriend, it’s usually easier to discuss this issue when things are going smoothly in the relationship rather than when a conflict is already brewing.  While negotiating a Cohabitation Agreement might be emotionally draining, it can protect an unmarried couple. I can assist clients who wish to draw up one of these agreements and can ensure that it is thorough so that it will hold up in Court if need be.

More

Property Rights After Marriage

Property Rights After Marriage

I’d like to marry my boyfriend and once we marry we will live in the home that I currently own. My friend is divorced, and she told me that I could lose the house if my husband and I were to divorce. How can that be?

Matrimonial property rights are set out in Part 1 of the Ontario Family Law Act.  Its a little complex, but I’ll try to explain it in a way most people can understand.

In simple terms, the legislation makes the spouses determine their net worth on the date of the marriage, and also their net worth on the valuation date (date they separated).  Usually assets grow during marriage, so commonly the marriage date asset value is subtracted from the valuation  date asset value.  That will leave each spouse with a net family property value.  The spouse with the greater net family property value pays the spouse with the lower one half of the difference.  This is called equalization.

So that applies to most assets, but under the Family Law Act the spouses’ Matrimonial Home is treated differently.  The practical effect of the legislation is that if one spouse brings the home into the marriage, and the spouses are living in it on the valuation date, then the house gets equalized regardless of the fact it was brought into the marriage by only one spouse.  In other words, what your friend told you is not entirely without merit. Your better option would be to sell the house before marriage.

More

What is a common law relationship?

If you live or “cohabit” with someone (regardless of whether they are the same gender as you or the opposite gender) and you are not married, then people often say that you are in a common law relationship. There is no precise definition of what constitutes a common law spouse. In Ontario you need to live together for three years or live together for less but be the parents a child. Under most federal laws, you are considered a common law couple if you have been living together for one year or longer.

Perhaps the most important distinction between married and common law spouses is the right to property when the relationship breaks down and the parties separate. Couples who live together do not have the same rights as married couples to a share in the value of property, including the home they live in, unless the property is in both of their names.

More