Overview of Documents Needed in a Family Law File

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.

 

Click here to download or print this file.

 

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)

Overview of Information Required for Your Family Law Case

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.

Click here to download or print this file. 

Documents Required:
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).

Terminating Support for Adult Children

The decision in Diment v. Diment by Justice Midwinter of the Manitoba Court of Queen’s Bench deals with a motion by a father to terminate child support for an adult child, and a cross motion by a mother to vary the proportionate sharing of the child’s post secondary education and dental expenses.

The child attended a full-time nursing program until April, 2012. During the summer of 2012 (Between April and August), the child was employed, and earned approximately $6,400. She continued to reside with the mother during that time.  The child resumed full time attendance at school in September, 2012.

The father moved for an order terminating his child support obligations for May – September, 2012, when the child was not attending school and was employed. He took the position that the child should use her earnings from the summer job to contribute to her expenses. The father agreed that the child resumed being a child of the marriage in September, 2012, but claimed that only Table support was payable commencing in September, 2012. Finally, the father sought an order terminating child support for the child commencing December, 2013, pursuant to a prior agreement between the parties. The mother took the position that the father should pay child support for summer, 2012, and that he should pay his proportionate share of the child’s section 7 expenses while the child was attending school in 2013.

The judge found that it was reasonable to expect the child to contribute some of her earnings toward her expenses, however, he noted the Manitoba Court of Appeal’s comments in Rebenchuk v. Rebernchuk, that

…. to reduce or eliminate parental support because the child took several breaks to work and save money, or opted for part-time studies, would penalize her efforts to achieve her goals with limited means.

In determining the appropriate level of child support for the adult child attending a program of education, the judge cited the framework set out by the Court of Appeal in Rebenchuk:

[20]  Based on Rebenchuk, there are three steps to consider.

1.  Does the person for whom support is sought a child of the marriage?
2.  Is the table amount in the guidelines inappropriate? If not, then the guidelines should be awarded.
3.  If the answer to step two is yes, what level of support is appropriate?

The judge found that steps 1 and 2 of the Rebenchuk inquiry were met. He noted that the child remained a child of the marriage, and that:

 Once the daughter returns to full-time attendance at her program, and for the full term of 2012, there will be a requirement for support over and above the table amounts by virtue of tuition. Accordingly, I am of the view that the second step in the case of Rebenchuk has been met.

Moving on to step 3 of the inquiry, the judge made the following findings in determining the appropriate level of support:

  • If the parents’ marriage remained intact they would have decided to support their daughter in her ultimate aim of receiving a practical nursing certificate;
  • The degree to which the child is able to earn an income to contribute to her own education is not entirely clear, and there was no evidence that the child still had access to her previous employment;
  • The child’s living expenses were reasonable since she was living at home with her mother and was being supported;
  • The child’s career plans appeared reasonable;
  • The child would likely benefit from her program of study, in that completion of same would hopefully result in a career and full-time employment
  • It was unclear whether part-time employment was available to the child while she studied full-time; and
  • It was unclear whether the child was eligible for student loans or other financial assistance.

On the basis of the findings above, the judge ordered the father to pay Table child support for the period between April and August, 2012. The father’s motion to terminate Table child support as of December 31, 2012 was granted, on consent, however, the father was ordered to contribute his proportionate share toward the child’s 2013 tuition expenses and any dental expenses as they arise.

The judge in Diment made a finding that the child continued to be a child of the marriage, notwithstanding that not attending a full-time program of education. His decision is consistent with section 1(1) of the Divorce Act, which defines a “child of the marriage” as a child who is “… (b)  the age of majority or over … but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.”

It is noteworthy that child support for adult children of unmarried spouses is subject to the definition of “child of the marriage” in the various provincial family law statutes, and the definitions are not always consistent with the Divorce Act.  For example, section 31 of Ontario’s Family Law Act provides that a parent is obligated to child support for a child over the age of majority only if that child “is enrolled in a full time course of education.”

Although provincial legislation in Ontario clearly treats children of unmarried spouses differently than children of married spouses, no steps have been taken to amend the legislation to date. Litigants with adult children should therefore be mindful of the legislation pursuant to which child support is being requested and/or ordered in their case.

New Divorce Application Practice Direction in B.C.

A new Practice Direction was released in B.C. for divorce applications, providing guidance on the preparation of Final Orders in Undefended Family Law Cases under Rule 10-10, and Summary Trials under Rule 11-3:
Continue reading

New B.C. Practice Direction on Appeals from Provincial Court

A new Practice Direction is available for appeals from the Provincial Court under Section 233 of the B.C. Family Law Act. Rule 18-3 of the Supreme Court Family Rules states,

Directions

(3)  A notice of appeal must include

(a) the standard set of directions, in the form directed by the Chief Justice, governing the conduct of the appeal…

The new directions for these circumstances are as follows:

Continue reading

What is a Child of the Marriage?

One of the most contentious issues around child support is defining what a child of the marriage is. The Divorce Act states:

(2) CHILD OF THE MARRIAGE — For the purposes of the definition “child of the marriage” in subsection (1), a child of two spouses or former spouses includes

(a) any child for whom they both stand in the place of parents; and
(b) any child of whom one is the parent and for whom the other stands in the place of a parent.

This definition means that children do not have to be biological if the in loco parentis test is met. It also means that children who have continued their education into their 20s can still be considered children of the marriage.

These definitions can also vary across jurisdictions in Canada. In Ontario, s. 1 of the Age of Majority and Accountability Act states “Every person attains the age of majority and ceases to be a minor on attaining the age of eighteen years,” whereas s. 1(1)(a) of British Columbia’s Age of Majority Act says “a person reaches the age of majority on becoming age 19.”

The leading case for step-parents is the Supreme Court of Canada case in Chartier v. Chartier, where the court looked at the actions and intentions of parents, and stated:

38 …The appellant argued that the test for whether or not a person stands in the place of a parent should be determined exclusively from the perspective of the child.  I cannot accept this test.  In many cases, a child will be very young and it will be difficult to determine whether that child considers the person as a parental figure.  Further, an older child may resent his or her step-parent and reject the authority of that person as a parent, even though, objectively, that person effectively provides for the child and stands in the place of a parent.  The opinion of the child regarding the relationship with the step-parent is important, but it constitutes only one of many factors to be considered.  In particular, attention must be given to the representations of the step-parent, independently of the child’s response.

The definition of in loco parentis has been applied quite broadly by courts. In Gardiner v. Gardiner the Supreme Court of Nova Scotia held that a woman who had no intention of adopting children but treated them kindly while living in the same house as their father stood in the place of a parent.

 

What is a Corollary Relief Proceeding?

A “Corollary relief proceeding” is defined in s. 1 of the Divorce Act as:

a proceeding in a court in which either or both former spouses seek a child support order, a spousal support order or a custody order;

These are brought in conjunction with or following a petition for divorce, which is why they are called “corollary.”

The effect of these types of relief under the Act is that any outstanding proceedings at the provincial level are stayed, though they can be restored at a later time.