Overview of Documents Needed in a Family Law File

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Family law files involve a lot of preparation, and there’s plenty of information exchanged between the sides.

Having the proper documents are absolutely essential, especially if a case appears as if it is going to court. But finding the original documents can often be a time consuming a frustrating exercise because people often don’t know what you need until someone tells you to look for it.

If parties are using 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 pieces of identification you provide, 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

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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 that you can identify and locate when planning your family law file. But there’s also lots of questions and details that can come up during a file which help fill in the blanks.

In addition to obvious questions such as details about the parties, their relationship, and the children involved, the court or lawyers involved will also want to know employment information about you and your partner, detailed 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 establish a retainer fee to establish the lawyer-client relationship, and the lawyer may want any existing child or spousal support payments to go through the lawyer’s office.

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

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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.

Interim Order Adjusted when Father Moved from Russia to America

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Justice Midwinter of the Manitoba Court of Queen’s Bench (Family Division) examined in Cunningham v. Cunningham the care and control of children whose father was initially employed in Russia, but then was hired to work in the United States.

The parties in this case were married for just over a year and separated in 2006. They had two children, ages 7 and 9. Following the separation, the father was employed in Russia and returned to Manitoba for one-month periods between prolonged stays abroad.

As a result of the father’s employment schedule, an interim order was made in 2010, which provided that the father would have care and control of the children for 10 days each month when he was in Manitoba. The father subsequently became employed in the United States, but returned to live in Manitoba. The father insisted on the schedule to continue as set out in the interim award, while the mother sought a change.

The judge awarded the mother primary care and control of the children, and reduced the father’s access to alternate weekends (from Friday evening to Sunday evening), based on the following findings:

  • The interim order clearly stipulated that the father’s access schedule of 10 days per month was ordered in contemplation of his employment in Russia
  • The children reside primarily with their mother, and are in full time attendance at school in the mother’s community
  • The children missed many of their extra-curricular activities when with the father
  • There were issues with schoolwork when the children were in the father’s care
  • The children need more stability than is provided with the current schedule

The judge also ordered the father to have two one-week periods of access during the summer months, and ordered the father to take the children to all scheduled extra-curricular activities while they are in his care.

Additional clauses dealing with the children’s travel were also included in the order, and a peace enforcement clause was issued on consent.

Finally, the father was ordered to pay Table child support and his proportionate share of section 7 expenses, and the mother was ordered to consult with the father prior to incurring any future section 7 expenses for which she may seek contribution.

Procedural Fairness in Child Protection Trials

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Alberta (Child, Youth and Family Enhancement Act, Director) v. M.K. deals with a motion by the Director of Alberta’s Child and Youth Services agency (“Director”) to proceed with a permanent guardianship trial under Alberta’s Child, Youth and Family Enhancement Act,  in the absence of the responding party.

The Director brought an application for a Permanent Guardianship Order (“PGO”) of  a child, A.W. (the “child”). The child’s mother died in 2005 and her father was sentenced to a long period of incarceration. As a result, the maternal grandmother (the respondent) became the child’s Guardian.  In 2010, the child was apprehended from the grandmother by Director, who was granted initial custody.

The Director’s Temporary Guardianship application and subsequent  PGO application involved some 40 court appearances, 6 counsel changes by the grandmother, and three trial adjournments,  all requested by the grandmother.   As a result, the child was left in an “initial custody status” for over two and one half years.  The permanent guardianship trial was finally set for August, 2012.  In July, 2012, the grandmother requested a fourth adjournment, which was denied. On the date of the trial, the grandmother decided not to attend at court, and instructed her lawyer to proceed in her absence. The grandmother’s lawyer requested and was allowed to get off the record. As a result of the grandmother’s non appearance, the Director applied to proceed in her absence.

In considering the Director’s application, the Judge W.S. Andrew cited the decision of the Alberta Court of Appeal in B.N. v. Alberta (Director of Child Welfare),

 [10]           The Court recognized that the duty to enter into an inquiry prior to proceeding to trial arises from the principle of a parent’s right to procedural fairness and to be heard in child welfare proceedings.  This principle was articulated by the Supreme Court of Canada in New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46.

 [11]           The Alberta Court of Appeal held that, while procedural fairness is fundamental in child protection proceedings, it is not absolute.  The Court was satisfied that an inquiry guided by a number of factors “provides sufficient protection to an absent parent in light of the overriding onus to proceed in the best interests of the child.” (Para 36).  The factors to be considered, as outlined by the Court at paragraphs 31 and 32 are as follow:

 a) the nature and date of the notice given, and the adequacy of it in the unique circumstances of the case;

b) the circumstances of the parent’s residence and ability to receive messages or correspondence;

 c) the parent’s pattern of past attendances at scheduled trials or hearings;

 d) the number of adjournments and length of delay leading up to the hearing;

 e) the extent of the parent’s involvement with the children prior to the hearing;

 f) whether there is some other reasonable explanation for the parent’s absence; and

 g) whether further attempts to secure the parent’s attendance may be productive.

Judge W.S. Andrew examined each of the factors articulated in the B.N. decision, and found that most factors worked against the grandmother. Judge W.S. Andrew found that the grandmother was fully engaged in the court process prior to the trial date:

  • she had regular supervised access to the child after the child was apprehended by the Director;
  • she attended the vast majority of the 40 or so previous court appearances and was familiar with the court’s process;
  • she attended at court on the day her request for a further adjournment was dismissed, and;
  • she was aware of the date on which the trial was scheduled to commence.

Judge W.S. Andrew found that no cogent reason was provided for the grandmothers’ non appearance, and that, absent a bench warrant to compel her attendance, further efforts to contact her could be equally productive or unproductive.

Judge W.S. Andrew noted that:

 [19] …All the factors [as set out in the B.N. decision] must be considered and the overriding test is what is in the best interests of the child.  In these circumstances, the best interest of the child is to have a decision made and some finality brought to her situation which has been left in suspension for at least two and a half years. It is clear that [the grandmother] is aware of these proceedings and has chosen not to attend. Further attempts to secure her attendance would not be productive, nor in the child’s best interests.  After reviewing all the factors, this Court finds that it is in the Child’s best interest to proceed.

 Accordingly, the Director’s application to proceed with trial was granted.

 

 

New Divorce Application Practice Direction in B.C.

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

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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:

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New Family Law Forms in B.C.

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The changes to B.C.’s Family Law Act, which come in to effect March 18, 2013, also change some of the forms used in B.C. family law. Some of the new forms include:

These new forms use the latest form of Adobe Reader, and may not work properly in a web browser without the latest update.

What is a Child of the Marriage?

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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.