There are eight main steps in a family lawsuit in Ontario under the the Family Law Rules (O. Reg. 114/99):
- Case conference
- Settlement conference
- Trial management conference
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:
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This non-refundable tax credit for children under 18 years of age has been repealed, and replaced by the enhanced UCCB.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.
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.
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.
This easy-to-follow webinar is information-packed and a great way to review the basic process of a day in 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 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 structure of the trial itself can vary greatly depending on the issues at hand, and what is decided during the trial management conference.
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.
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):
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.
Family law files involve a lot of preparation, and there’s plenty of information exchanged between the sides.
Having the proper documentation is absolutely essential to resolving the matter, especially if a case appears as if it is going to court. Knowing what documents you require beforehand is helpful, as it can take a lot of time to gather the necessary information. Original documents may be required in some instances, although copies may be sufficient in others.
If parties are represented, the lawyers will typically keep the originals of many of these documents. They are required to care for these documents properly, and will return them at the conclusion of the file or the termination of the retainer agreement.
One important exception to this is the piece of identification you provide when you initially retain a lawyer, which will be copied and returned to you immediately. Identification requirements are quite routine, and should not be taken as a sign that the lawyer does not trust you or thinks you are pretending to be someone else.
Disclaimer: Although the checklist is very detailed, not all of the disclosure items listed will be necessary or relevant to your case. Furthermore, the checklist is not comprehensive and you may be required (or requested) to provide additional documentation that is not listed.
Any private information that you provide or receive in connection with your case should be used only for the purposes of resolving your family law case, and for no other purpose. Improper use of another person’s financial information may have legal consequences. This list has been compiled by My Support Calculator for informational purposes only and does not constitute legal advice. You should always defer to a lawyer for legal advice.
Additional Documentation to Provide to Your Lawyer: Consider providing your lawyer with the additional information found in here. Ontario residents may also want to consider completing a draft Financial Statement: Draft 13.1 Financial Statement with Instructions (ON only)
One of the best ways that you can save money and keep your legal fees down is to be properly prepared. Family law cases can be complex and require a lot of information.
There are lots of documents required when planning your family law file. There are also lots of questions and details that are helpful to provide at the initial stage of your file.
In addition to obvious questions such as details about you, your spouse, your relationship, and your children, the court or lawyers involved will also want to know employment information about you and your partner, detailed information about your assets and liabilities, and information about the matrimonial home.
Bringing several pieces of identification for a meeting with a lawyer, and a chequebook, is usually a good idea. Identification requirements are common across Canada, and should not be considered an insult or a sign that the lawyer mistrusts you. A cheque may be needed to provide a retainer to establish the lawyer-client relationship.
Filling out the following document will save you a considerable amount of time at a lawyer’s office, and should help the lawyer prepare for your file.
See list of documents to provide to your lawyer: Basic Documents Required For Your Family Law Case.
For Ontario residents, also complete a draft Financial Statement: Draft 13.1 Financial Statement with Instructions (ON only).
Only one parent can claim tax deductions like the children’s fitness credit (line 365), tuition transfer (line 324) or amount for an eligible dependent (line 305). During separation or divorce, parents need to communicate during tax season in order to ensure that both are not inadvertently claiming the same thing.
Some people try to claim legal fees under the Line 232 “Other deductions.”
All of these areas, if improperly addressed, could flag the attention of the CRA and lead to an audit.
In Decaen v. Decaen, the Ontario Court of Appeal upheld a trial judgement granting sole custody of 8-year-old twins to a mother on the condition that she relocate from Mississauga, Ontario (where she was living) to Sudbury, Ontario (where the children were living).
The parties resided in Sudbury during the marriage and the mother was the primary caregiver of the children. After separation the mother moved to Mississauga with the parties’ 18 year-old daughter, but the father did not allow the twins move.
The mother applied for sole custody and an order allowing her to relocate the twins to Mississauga. The father applied for joint and shared custody and an order requiring the twins to remain in Sudbury.
The judge trial concluded that it would be in the children’s best interests to remain in Sudbury. He granted sole custody to the mother on the condition that she returns to Sudbury, and if the mother decided to remain in Mississauga the father would have sole custody. Both parents appealed.
Neither party objected to the relocation condition in the custody order; both parents argued that the order should be set aside entirely, and each parent sought the relief he/she originally asked for at trial. In a jointly-written decision by a 3-judge panel, the Court of Appeal dismissed both parents’ appeals and upheld the trial decision.
By deciding to uphold the trial judgement in Decaen, the Court of Appeal accepted (at least tacitly) that judges in Ontario can make custody orders that are conditional on a parent’s willingness to relocate, and this decision of the Court of Appeal is very noteworthy.
While section 16(10) of the Divorce Act empowers judges to “impose any terms, conditions, and restrictions” on custody orders that they see “fit and just”, case law indicates that judges rarely use this discretion when making custody orders. In mobility cases, judges do restrict a parent’s ability to move to another jurisdiction (by prohibiting that parent from relocating with a child to another jurisdiction. It is very uncommon to see orders that place a positive obligation on a parent to move to or from a jurisdiction as a prerequisite to being awarded custody of a child.
The Nova Scotia Court of Appeal has found that requiring a parent to relocate as a condition of custody is permitted but unusual, and such orders should only be made in rare circumstances when it is the children’s best interests (see Reeves v. Reeves and MacRae v. Hubley). In contrast, the British Columbia Court of Appeal found that courts “do not have the power to dictate where a parent must live, even if the result would be in furtherance of the best interests of the children.” (see Stav v. Stav).
The trial judge’s order in Decaen did not explicitly compel the mother to relocate to Sudbury, however in light of the mother’s interest in sole custody of the children, it could be argued that the actual effect of the order was compulsory from her perspective. It will be interesting to see how this decision will be used and interpreted in future mobility (and custody) cases in Ontario.
In addition to raising an interesting point of law about conditions of custody, the Court of Appeal’s decision contains a helpful analysis of mobility issues and helpful comments about the weight that should be accorded to children’s wishes in custody disputes. The mother in Decaen argued that the trial judge did not conduct a proper analysis of the children’s best interests with respect to mobility, and that he did not give sufficient weight to evidence that the children wished to relocate to Mississauga.
In finding that the trial judge properly conducted his analysis, the Court of Appeal cited the leading case on parental mobility, Gordon v. Goertz,  2 SCR 27:
 In Gordon v. Goertz, Justice McLachlin (as she then was), writing for the majority, identified a number of factors relevant to a child’s best interests in the context of possible relocation:
(a) the existing custody arrangement and relationship between the child and the custodial parent;
(b) the existing access arrangement and the relationship between the child and the access parent;
(c) the desirability of maximizing contact between the child and both parents;
(d) the views of the child;
(e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
(f) disruption to the child of a change in custody; and
(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
 At para. 50 of Gordon v. Goertz, McLachlin J. stated that, “[i]n the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child’s access parent, its extended family and its community.
In dismissing the mother’s argument with respect to the children’s wishes, the Court of Appeal listed the factors that are relevant to such a determination:
 In assessing the significance of a child’s wishes, the following are relevant:
(i) whether both parents are able to provide adequate care;
(ii) how clear and unambivalent the wishes are;
(iii) how informed the expression is;
(iv) the age of the child;
(v) the maturity level;
(vi) the strength of the wish;
(vii) the length of time the preference has been expressed for;
(ix) the influence of the parent(s) on the expressed wish or preference;
(x) the overall context; and
(xi) the circumstances of the preferences from the child’s point of view: See Bala, Nicholas; Talwar, Victoria; Harris, Joanna, “The Voice of Children in Canadian Family Law Cases”, (2005), 24 C.F.L.Q. 221.
It is apparent that the trial judge considered all of these relevant factors.