Issues to Consider when Divorcing

When you separate or divorce in Canada, you must consider a number of different issues, which can be broken down into the following broad categories:

  • Property;
  • Child Custody and Access;
  • Child Support; and
  • Spousal Support.

Each of these general categories can then be broken down further. Family law is extremely complex and you should consult with a family lawyer to fully appreciate and understand the many issues applicable in your particular circumstances. A list of Family Law Professionals in your area whom you may wish to consult, is provided in the directory. (Note that listing does not endorse, confirm or represent the expertise or competence of any of the persons listed.)

Once you understand the law and how it applies to your situation, there are many different ways to resolve family law disputes without necessarily having to go to court, including negotiation, mediation, arbitration, and collaborative family law. The dispute resolution method that works best depends on you and your situation.

Grounds for Divorce under the Divorce Act

There are two ways through which someone can demonstrate to a court that there has been a breakdown of the marriage under the Divorce Act:

  1.  The spouse has committed adultery, or treated their partner with the type of physical and mental cruelty that makes it intolerable for them to live together; or
  2. They have lived separate and apart for at least 1 year before starting the divorce proceedings.

The first basis for claiming a divorce is less common, especially since cases of adultery or cruelty are usually followed by periods of separation. If an application is brought under a claim of adultery the person with whom the affair took place can be named, and will have have the right to be served materials and respond fully.

When applying for a divorce due to separation, the couple must still be living separate at the time of the application. The calculation of this period allows for attempts at reconciliation that do not exceed 90 days, and circumstances which may not be under the party’s control.

The shift to a no-fault divorce in Canada was described in the Supreme Court of Canada case of Pelech v. Pelech:

38.              Prior to 1968, the granting of a decree of divorce under the various legislative schemes operative throughout Canada was linked to the commission of a matrimonial offence. The 1968 Act consolidated several regimes into a single code and by and large preserved the concept of matrimonial fault as the measure of relief. However, it also introduced in s. 4 the criterion of permanent marriage breakdown as an alternative basis of relief. MacKeigan C.J. summarized the shift in attitude signalled by the new legislation in Connelly v. Connelly (1974), 47 D.L.R. (3d) 535 (N.S.C.A.), at p. 539:

I respectfully agree with this implied recognition that the Canadian Divorce Act of 1968, 1967‑68 (Can.), c. 24, by making marriage breakdown the primary practical basis for divorce, has removed “blame” as a determining factor in maintenance. No longer is it necessary, if it ever was necessary, which may be doubted, to balance and assess relative degrees of “guilt”. Certainly there is now no basis in the Act for applying a moralistic appraisal process to breakdown cases in general.

Bars to Divorce under the Divorce Act

There are 3 bars to divorce under the Divorce Act:

  1. Collusion between the parties;
  2. Failure to make reasonable arrangements to support the children; and,
  3. Where an applicant has condoned or connived an act of adultery, when that act is the basis for applying for divorce.

Collusion is defined in the Act as “an agreement or conspiracy to which an applicant for a divorce is either directly or indirectly a party for the purpose of subverting the administration of justice.” Justice Dunn of the Ontario Superior Court of Justice stated in Kaur v. Brar,

[11]      It is clear from cases such as McKenzie v. McKenzie, (1982), 26 R.F.L. (2d) 310 that a marriage entered into for the purpose of giving a party immigration status does not, by itself, invalidate the marriage…
[12]      Collusion in divorce applications has been interpreted by the Courts to include the dissolution of marriages that are a part of an immigration scheme.  If a trial judge makes an affirmative finding of collusion, then the petition for divorce must be refused.  Schuett v. Schuett (1970), 3 O.R. 206 (Ont. C.A.), McKenzie v. McKenzie(1982), 26 R.F.L. (2d) 310 (Ont. C.A.).  While these cases were decided pursuant to the predecessor of the current legislation, s.11 of the Divorce Act now places a positive duty on the Court to satisfy itself that there has been no collusion before allowing an application for divorce.

Reasonable arrangements for the support of the children can be put into writing through a separation agreement or court order, but this is not always necessary. A lawyer in your jurisdiction can assist in drafting this kind of agreement.

The interpretation of conniving an act of adultery is derived from the English case of Churchman v Churchman [1945] 2 All ER 190, where the party has a “corrupt intention of promoting or encouraging either the initiation or the continuance of the wife’s adultery.” Lord Merriman P. explained this further, stating,

It is the essence of connivance that it precedes the event and generally speaking the material event is the inception of the adultery and not its reputation although connivance at the continuous of an adulterous association may show that the party conniving must be taken to have done so at the first.
Justice Laidlaw summarized the principles of connivance in Maddock v. Maddock, [1958] O.R. 810:
  1. Connivance may consist of any act done with corrupt intention of a husband or wife to promote or encourage either the initiation or the continuance of adultery of his or her spouse, or it may consist of passive acquiescence in such adultery.
  2. Corrupt intention of the husband or wife seeking a divorce is an essential ingredient of connivance, and the conduct of the husband or wife seeking the divorce must show that he or she, as the case may be, willingly consented to the adultery of the other spouse.
  3. The issue is whether on the facts of the particular case, the husband or wife seeking the divorce was or was not guilty of the corrupt intention of promoting or encouraging either the initiation or the continuance of the adultery of the other spouse.
  4. Acts done by a husband or wife seeking a divorce or by any person employed by him or her, as the case may be, to keep watch on the other spouse to see whether or not his or her suspicions of adultery are well-founded or unfounded, do not necessarily constitute connivance and, likewise, if one spouse does nothing without lulling into a sense of security, the other spouse about whom he or she, as the case may be, is suspicious, but merely watches her, he is not necessarily guilty of passive acquiescence amounting to connivance.
  5. “The Court should not allow its judgment to be affected by importing, as principles of universal application, pronouncements made with regard to wholly different circumstances and be led to a conclusion contrary to the justice of the case”: (from Churchman v. Churchman, [1945] P. 44, at p. 52)
  6. There is a presumption of law against the existence of connivance and the Court should not find a spouse guilty of connivance unless the evidence shows clearly that all the essential ingredients thereof exist in the particular facts under consideration.

Representing Yourself at your Family Law Trial

The Ontario Court of Justice has put together a guide to assist you in representing yourself at your family law trial.  The guide has lots of useful information that, while geared primarily for Ontario trials, is also helpful for trials in other provinces.

The guide discusses various things to consider before trial, including offers to settle, costs, witnesses, medical reports, documentary evidence, financial statements and so on.  The guide also provides a useful flowchart of the steps of a trial, and includes information on opening and closing statements, examining and cross-examining witnesses and experts, objections, excluding evidence, etc.

Remember, however, that the guide provides very basic information only and is not intended to replace legal advice.  Family law is a complex area of law and you may well want to hire a lawyer to ensure that your rights are protected. If you can’t hire a lawyer for your entire trial, you should at least consider consulting a lawyer for specific issues.  For a list of family lawyers in your area, please refer to the lawyers listed in the sidebar of the My Support Calculator website.

Federal Government Announces New Tax Changes for Families with Children

In October 2014, the federal government announced some budget changes that will affect families with children.  Here is a summary of some of the changes:

The Family Tax Cut (2014 and subsequent tax years)

Couples with a dependent child under 18 years of age may transfer up to $50,000 of taxable income from the higher income earning spouse to the lower income earning spouse. The maximum tax savings is capped at $2,000.

This would not apply to separated or divorced couples unless they have repartnered. If both parties have repartnered, a child in shared custody could potentially mean both new families could take advantage of this tax savings.

Child Care Expense Deduction (2015 and subsequent tax years)

The child care tax deduction is being increased by $1,000. Therefore, the tax deduction increases to:

  1. $8,000 per child for children under 7 years of age;
  2. $5,000 per child for children 7 to 15 years of age, inclusive; and
  3. $11,000 per child for disabled children.

Children’s Fitness Tax Credit (2014 and subsequent years)

The amount of program fees eligible for a federal non-refundable fitness tax credit for children engaged in qualifying activities doubles from $500 to $1,000 per child. In 2015, this tax credit becomes refundable.

 Universal Child Care Benefits (UCCB) (2015 and subsequent benefit years)

The UCCB increases from $100 to $160 per month for children under 6 years of age. A new benefit of $60 per month begins for children 6 to 17 years of age, inclusive.

 Child Tax Credit (2015 and subsequent taxation years)

This non-refundable tax credit for children under 18 years of age has been repealed, and replaced by the enhanced UCCB.

To determine if you will be affected by the changes, you should consult a tax specialist.

What To Do & Bring When Attending Court

Divorce can be a very stressful situation.  We definitely do not want to add to that stress by frustrating a Judge in court because we have not filled out the paperwork properly or have failed to include the corresponding documentation. Whether filing documents in the courts, attending at a hearing or mediating (when you can actually get along with the soon-to-be-ex-spouse), it is imperative that your documents are filled out correctly with current information.  Whether using legal counsel or going it on your own, never skip steps! Judges/mediators don’t like their time to be wasted! Therefore, check and recheck your information before filing or attending at the courts.

A very good friend to MSC, The Honourable Mr. Justice D. Roger Timms, has been kind enough to share a few pointers on what to do and bring when attending court.  Be sure to read this fabulous article and take notes for your next court visit!

Click HERE to read Mr. Justice Timms’ article Family Law – A view from the Bench.

Your Day in Family Court: How to Prepare & What to Expect

The following webinar discusses what it’s like to go to Family Court.  From the Family Law Education for Women (FLEW) campaign, this webinar presents an easy-to-follow guide of the steps leading up to trial, working with your lawyer, as well as some commonly used court terms.

FLEW, which is run by METRAC, provides legal information about family law with clear explanations, in 14 languages including American Sign Language, and audio formats.

The presenters in this webinar are Tamar Witelson, METRAC’s Legal Director, and Jenna Beaton, a practicing family law practitioner with the firm Martha McCarthy & Company.

This easy-to-follow webinar is information-packed and a great way to review the basic process of a day in Family Court.

To view this webinar, click here.  For the slide presentation only, click here.

What to Expect when going to Family Court

Going to family court can be a long and confusing process.  This article is the first in a series that will take you through what to expect at each stage, and will help provide you with links to places where you can learn more about each step.

The Pleadings

The first step when taking a matter to family court is an exchange of documents.  In general, the people involved (referred to as ‘parties’), take turns preparing an application, then a response and finally a reply to the response.  Each document has to be ‘served’ on the other party, and filed with the court.  Serving is a formal process where the party who created the document gives it to the other party involved in the case.

The very first step in a family court matter is the filing of an application by one person. In Ontario, the form to file is Form 8.  The form sets out the types of claims that the person can make. The person who fills out the form is known as the Applicant, and once filled out, the Applicant must serve it on the other person (or persons) involved in the claim, known as the Respondent(s).

The Respondent then needs to prepare a response or ‘Answer’ and serve it on the Applicant.  The response gives the Respondent a chance to address the facts and claims made by the Applicant, as well as make new claims.  Claims by the Respondent are known as ‘counter claims’.  The respondent has a deadline for filing his response, which, like the forms, can vary by province.  In Ontario, the deadline is 30 days, and the form required is Form 10.

After receiving the response, the Applicant has an opportunity to serve and file a ‘Reply’. The Reply is meant to address new facts and claims presented by the Respondent.  You can learn more about how to file a Reply, and the timelines involved here.

During this initial period of exchanging documents (known as pleadings), both parties will be normally be required to share their financial information with each other. Depending on the court in which the application is filed, there may be a ‘first appearance’ scheduled, where the Applicant and Respondent meet with a court official to make sure they have filed the proper paperwork and disclosed finances appropriately.

Conferences and Motions

After the pleadings have been filed, the next step is a case conference.  This is an informal meeting between a judge, the Applicant and the Respondent.  In general, the judge will go over the details of the pleadings, and will make orders for disclosure and questioning as needed.  The judge might also make some ‘uncontested orders’ (ones where both parties agree).

After a case conference, the Applicant and Respondent are able to make motions to the court.  This ability allows them to request smaller matters be handled until the trial is resolved.  Motions often include establishing or varying support or custody arrangements, but all sorts of motions are possible.

A case conference marks the start of when parties can submit motions, but if a motion is urgent, it is possible to file an ‘ex parte’ motion (ie. an urgent motion without notice to the other party) earlier than a case conference.

Before an actual trial can occur, a settlement conference needs to be scheduled. It is another informal meeting between judge, Applicant and Respondent, but unlike the case conference, its’ focus is on resolving issues between the parties.  The judge will go over each part of the case, and try to narrow the scope of disagreement between the parties so that if a trial can’t be avoided, it can at least be focused on as few issues as possible.

Once a settlement conference has occurred, it is possible to schedule a court date, although sometimes the parties will schedule additional settlement conferences after the first one in the hopes of avoiding a trial.

Family courts are often overburdened, and it can take some time before the parties can schedule a trial date.  As the date approaches, one final conference, called a trial management conference, occurs.

Unlike a settlement conference, a trial management conference is focused on the logistics of how the trial will proceed.  Both parties will be required to outline who their witnesses will be, and how long they will need to examine them.  A judge will make any last minute orders for disclosure or questioning, and both parties will give notice as to what issues they hope to have the court address.   The purpose of the trial management conference is to create a timeline for the trial, and handle the logistical needs of the court.

The Trial

The structure of the trial itself can vary greatly depending on the issues at hand, and what is decided during the trial management conference.

LCO Report on Increasing Access to Justice in Family Law

The Law Commission of Ontario has released a new report looking at how to make the family law system in Ontario more inclusive and affordable.

The challenges created by unrepresented litigants are a particular focus in the report. The report states,

Although family law disputants keep being told to “get a lawyer”, many  cannot afford to do so, are  too “dispirited” or they do not know what lawyers do.

The report cautiously recognizes the use of unbundled services as part of the solution, and even indicates that expanding the scope of paralegals may be part of the solution.

Continue reading

Final Report of National Study on Self-Represented Litigants Released

The National Self Represented Litigants Project, spearheaded by Prof. Julie Macfarlane of the University of Windsor Law School, has released its final report entitled “Identifying and Meeting the Need of Self-Represented Litigants”.  The 150-page report includes findings based on interviews with several hundred self-represented litigants in Alberta, British Columbia, and Ontario, and presents statistical data and recommendations relating to self-represented litigants in all three provinces. An executive summary of the report is available here.

The report’s findings include the following statistics about self-represented litigants (SRL):

  • 30% – 38% of all litigants in Alberta, British Columbia and Ontario are self-represented.
  • 60% of all SRLs are involved in family law litigation.
  • The majority of family law cases involving SRLs are heard in divorce court (Superior Court of Court of Queen’s Bench).
  • 54% of SRLs who were interviewed reported that they had a lawyer at some point during their litigation.
  • The most consistently reported reason for self-representation was financial constraint, and the majority of SRLs who were interviewed reported that they did not have a lawyer because they could not afford to pay legal fees.
  • Many litigants reported that they became self-represented in the middle of their family law dispute because they ran out of funds and could not continue to pay a lawyer.
  • Another frequently cited reason for self-representation was dissatisfaction with the legal services provided by lawyers.

Among the report’s main findings was the fact that SRLs are seeking legal information and “guidance” rather than legal advice or “direction”, and that resources providing legal comprehensive legal information are not readily available.

My Support Calculator is working diligently to provide self-represented litigants with comprehensive information about family law. To learn more about family law and the legal process, continue navigating through mysupportcalculator.ca. For a free calculation of your own or your partner’s support obligations, click here.