Love and marriage should not be taken lightly. It seems like every day we see relationships in turmoil on television and Hollywood romances renounced. People aimlessly jump into this commitment without thinking like a couple in a drunken stupor leaping into bed. But love and marriage should not be toyed with either. It is not a game and the truth and lies of divorce can impede the pursuit of happiness. A dishonest marriage can turn two honest, loving people into two deceitful, unscrupulous people in a simple twist of fate. Marriage is certainly not a game anyone wants to play.

Like a child clutching its most adored lucky charm, we hold on to our faith that love conquers all, even if this love will ultimately lead us down an ugly road of despondency and separation. This passionate philosophy keeps people trying to rekindle the flames of an already extinguished fire for far too long. Even when we realize that our one true loves are not in fact the figure of our fantasies after all we hold on to them like a safety blanket just because we “love them.” But love should never require sacrificing yourself or forfeiting your joy or aspirations. You can love a person and choose not to be with them. Sometimes an honest perspective is healthier than a dishonest reality. Love is not enough of a reason to keep the flames burning. You might hurt each other if you keep burning what is just not there. While the split will still be sad, it does not have to be dramatic or deceitful. To avoid any unnecessary grief take the following truths and lies with a grain of salt:

#1 Lie: You should not split up until you have fallen out of love.

Truth: Once you love someone, you will love him or her forever. People do not fall in and out of love, as if love can be measured. People fall out of trust, intimacy, and respect.

#2 Lie: If we loved each other more, we would be able to make this relationship work.

Truth: Love is only a prerequisite, and it is the easy part. Great marriages take deep partnership, and a commitment and a willingness to grow together and individually on all levels – emotionally, mentally and spiritually – by both people.

#3 Lie: If the relationship ends, we have failed.

Truth: The failure is overstaying. Be honest with yourself and each other when it is time to end your relationship, without having to make it anyone’s fault. Your goal is not to become the next reality television show, but to use the power of unconditional love and respect that you hopefully started the relationship and marriage with to gracefully transition out of it. Remember, at the end of the day, you both want the best for each other, do you not?

For more information on divorce proceedings and other family law matters, please visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

In the province of Ontario, divorce rules can be complicated, depending on the length of the marriage, whether there are any marital children and the ability of the spouses to come to an agreement regarding property division and support rights. The following is a summary of the rules regarding obtaining a divorce.

One of the grounds for a divorce in the province of Ontario is the breakdown of marriage based upon the separation of spouses for more than one year. During this time, the spouses must live separate and apart, meaning that they may not cohabit for more than ninety days during this period. However, even if the spouses live apart, they are not legally divorced until they enter into a separation agreement or have a divorce judgment entered by a court of competent jurisdiction. The rules surrounding jurisdiction, as well as the specific grounds for divorce, are specified by the Divorce Act.

An uncontested divorce happens when one spouse files an application for divorce and the other spouse does not file an answer. In failing to file an answer, the spouse is essentially stating that he or she does not contest the divorce. However, for an uncontested divorce to be valid, the following must also be true:

• The grounds of divorce must be the breakdown of the marriage based upon one year of separation
• The spouse receiving the application for divorce was properly served

The parties must have resolved all corollary issues, such as child support, child custody, child access, child visitation, and spousal support, through a separate agreement or court order. Once an application for uncontested divorce has been received and the one year separation period has passed, the judge will grant the divorce judgment.

Contested divorces are more common, especially with couples who have been married for a longer period of time, have children, or have a large deal of property to divide. Contested divorces may be settled outside of court, or they may be carried out by following formal divorce procedures.

If spouses wish to negotiate a divorce settlement outside the courtroom, they may enter into a separation agreement. During negotiation, they discuss the legal rights and obligations that they wish to enter into upon their separation. Each spouse must provide financial information to the other spouse. By sharing this information, they will be able to make a fully informed decision about how to divide the marital assets. Once an agreement is reached, the parties will express their agreement in a written separation agreement. This agreement will then be presented to the court and incorporated into a final divorce decree.

If the parties are unwilling, or unable, to come to an agreement outside the courtroom, they may obtain a divorce through the formal court process. First, the spouse petitioning for divorce must file an application for divorce and financial statement with the court. The application for divorce states the grounds for divorce and often includes corollary issues, such as requests for child custody, child support, spousal support, or the appropriate division of marital assets. This application must be “issued” by appropriately serving your spouse with the divorce papers. Once the spouse has been presented with the divorce application and financial statement, these documents must be filed with an affidavit for service with the court.

The spouse receiving the divorce application must respond by serving the petitioning spouse with an answer and financial statement. They must then file these documents with the court within thirty days of receiving the divorce application. The answer must include any points of disagreement between the two spouses. Once the answer is received by the petitioning spouse, that spouse must file a reply within ten days if he or she disagrees with any statements contained in the answer.

Once all the proper papers have been served and filed with the court, a case conference is held where the spouses will discuss preliminary issues, such as disclosure, scheduling, and appointment of a Children’s Lawyer, if there are children involved in the divorce.

Following this meeting, the parties begin the discovery process, through which financial documents are exchanged and the parties are given an opportunity to question the other party about any outstanding issues. If, during the discovery process, any issues must be resolved in a timely fashion, either party may bring a motion to resolve the issue. Examples of such issues include the failure of a spouse to pay interim child support that is necessary for the wellbeing of a child, or the failure of one of the parties to comply with all procedural requirements.

After the discovery process has been completed, the parties will meet for a settlement conference. During this conference, the parties will attempt to resolve any outstanding issues so that the case need not proceed to trial. This conference occurs in the presence of a judge, who will ask questions of the parties and, if necessary, provide advice as to how he or she would resolve the case. The parties need not wait until the settlement conference to reach a settlement agreement and, even if no settlement is entered into during the settlement conference, they may settle at any time prior to trial.

If the spouses are absolutely unable to reach a settlement agreement, the case will proceed to trial. During trial, witnesses will be examined by each of the parties, exhibits will be presented to the judge, and the parties will each argue their case. Following the trial, the judge will make an ultimate decision and enter a final judgment.

Divorce in Canada is not based upon the place of marriage, but rather based upon residency. Even if two spouses were not married in Canada, they can still be granted a divorce if they are residents of Canada for at least twelve months preceding the divorce application.

For more information on divorce and other family law matters, please visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

The 1985 Divorce Act is a federal mandate that changes the rules by which a court assumes jurisdiction for divorce petitions. This Act not only establishes jurisdiction, it also sets a new standard for grounds of divorce, creates the option to file a joint petition for divorce, and establishes set procedures for when a divorce decree becomes effective.

A court in the province of Ontario has jurisdiction over divorce proceedings if one or both spouses have resided in Ontario for at least twelve months preceding the filing of the divorce petition. Following the divorce, requests for variation of the divorce decree may be made to any court in the province in which either spouse resides, even if it is not the same court where the original divorce was granted.

Under the Divorce Act, the only ground for divorce is marriage breakdown. Marriage breakdown can be demonstrated in cases where:

• The spouses lived separately for at least one year prior to the divorce judgment
• The spouse against whom the divorce is sought (i) committed adultery or (ii) treated the other spouse with physical or mental cruelty of a kind to make it intolerable to live together

Where the grounds for divorce is marriage breakdown based on one year of separation, the time of separation begins on the date the spouses began living apart. During the time of separation, either spouse may make an application for divorce at any time, even before the spouses have been living apart for one year, but the divorce is not granted until one year has passed. During the one year period of separation, if the spouses resume cohabitation for a period of more than ninety days, the calculation of the one-year period will begin anew, following the last date of separation.

Under Section 11 of the Divorce Act, certain activities will bar the grant of a divorce. Such activities include:

• Collusion between the spouses
• The parties fail to make support arrangements for the marital children
• A divorce has been sought on cruelty grounds but there has been no condonation or connivance

The Divorce Act introduced the option to file for divorce jointly. Using a joint petition, the spouses can claim divorce based upon the breakdown of the marriage when the spouses have been living apart for at least one year. Such petitions may include claims for spousal support, child support, child custody and child visitation. If the spouses wish to simplify the process even further, one spouse may file for divorce and the other spouse can agree not to respond to the divorce petition, thereby creating an uncontested divorce and eliminating the need for the spouses to appear in court.

Spouses who reconcile prior to filing a divorce petition, or who reconcile prior to fulfilling the one year requirement for living separate, are still married and must do nothing to maintain their marital status. If the spouses attempt to reconcile and begin to cohabit during the one year requirement for living separate, the waiting period for divorce starts over if the spouses cohabit for more than ninety days. The purpose of this ninety-day reconciliation period is to permit the spouses to repair the marriage without penalizing them if the reconciliation is unsuccessful.

Negotiation is the process through which the spouses negotiate a favorable settlement agreement. During the negotiation process, the two parties essentially compromise, with each side offering certain allowances in exchange for other provisions that they wish to include in the property settlement agreement.

Mediation is another alternative to litigation that allows spouses to quickly resolve their differences and come to a settlement agreement regarding their property, children, and support issues. During mediation, a professional, non-partisan mediator facilitates conversations between the spouses to assist them in coming to a reasonable agreement.

Once a settlement has been reached, whether through mediation or through negotiation, the parties will express their agreement in a written separation agreement. This agreement will then be presented to the court and incorporated into a divorce judgment that makes the agreement more easily enforceable.

Under the Divorce Act, a divorce judgment becomes effective thirty-one days after it is granted. In certain circumstances, the court may shorten the thirty-one day requirement if the parties agree to the shortened period and agree not to appeal the judgment. However, a certificate of divorce certifying that the judgment has taken place is not made available under thirty-one days after the judgment was entered. Such certificates are required to remarry.

The Divorce Act also covers corollary issues such as spousal support, child custody, child access and child support. Corollary relief is any relief sought that is separate from the actual divorce. Such relief may be sought by the petitioning spouse in the petition for divorce, or by the responding spouse in a counter-petition. The divorce itself may be severed from the corollary relief sought, so that a summary judgment for the divorce may be obtained even though the parties are unable to agree on issues such as child custody and support. Additionally, while the divorce is being finalized, either spouse may petition for interim corollary relief, such as interim orders that grant custody of the children to one parent while the corollary issues are being resolved.

For more information on divorce and other family law matters, please visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

Child support consists of monthly payments made by a non-custodial parent to the custodial parent for the support, maintenance, and care of a child. Both parents have the obligation to provide financial support for their children and, once a child’s parents separate, the non-custodial parent has a duty to pay child support to the custodial parent.

The specific amount of child support to be paid is set by the Child Support Guidelines and depends on the gross income of each parent, the number of children involved, and the province in which the parents live.

Often, a child may have special or extraordinary expenses, such as childcare, medical or educational expenses, that must be paid by the child’s parents in proportion to their respective incomes. Accordingly, the non-custodial parent may be required to pay more than the amount set by the Child Support Guidelines to cover these additional expenses. The non-custodial parent is required to pay the determined child support regardless of any decisions made concerning child visitation.

Child support arrangements are monitored and enforced by the Family Responsibility Office (FRO), a governmental agency responsible for ensuring that families are given the financial support that they are entitled to receive. The FRO receives all support orders issued by Ontario courts. Once the FRO receives a divorce decree and/or support order, it contacts both the payor parent and the parent receiving the child support payments and provides them with a case number and personal identification number to use in communications regarding their support order.

Typically, support payments are made through an employer who will deduct the amount of payments from each paycheck and send the money to the FRO. The FRO then sends these payments to the custodial parent receiving child support. If there is no employer, the payor parent can send payments directly to the FRO, which will then send the payment to the recipient parent. Payments can be made to the FRO using the following methods:

• Telebanking
• Online banking
• Pre-authorized payments from a bank account
• Checks or money orders

Once the FRO receives a payment, it will be sent to the recipient parent within 48 hours. Payments can be made to recipients either by direct deposit to a bank account or by mailing a check to the parent’s address.

If the payor parent falls behind in his or her child support payments, the FRO will first attempt to come to an agreement with the parent where past due payments are paid in installments. Such an agreement is referred to as a Voluntary Arrears Payment Schedule (VAPS). Regardless of whether a VAPS has been agreed to, the FRO can collect past due payments from tax refunds due to the parent and can issue a writ of seizure and sale against the parent’s property to pay off the arrears. If the parent fails to pay off any arrears, the FRO may also take the following actions:

• Reporting the incident to the credit bureau
• Garnishing the payor parent’s bank accounts
• Suspending the parent’s driver’s license
• Suspending passports and other federal licenses, such as a pilot’s license
• Taking the payor to court to collect on the past due payments

Typically, child support cannot be an amount less than that required by the Child Support Guidelines . However, in certain instances, the courts may permit a reduction in the amount of child support paid. Such circumstances include:

• Undue hardship
• When the child has reached the age of 18
• Where there is shared custody

Undue hardship occurs when there are circumstances that cause hardship for one of the parents and that parent has a lower standard of living than the other parent. Examples of circumstances that may cause undue hardship include: unusually high costs associated with access to a child or a legal duty to support another person. When undue hardship is demonstrated by the payor parent, the court may reduce the amount of child support to an amount that is reasonable based upon the discretion of the court.

If the child support agreement, or court order, was entered into prior to May 1, 1997, the payor parent can deduct child support payments on his or her income taxes and the parent receiving the child support must claim the payments as income on his or her income taxes. If the child support agreement, or court order, was entered into after May 1, 1997, the child support payments are not deductible for the payor parent and the recipient parent is not required to pay taxes on the payments.

Under the Child Support Guidelines, there is no set termination date for child support. Normally, child support is paid as long as the children are enrolled in school on a full-time basis. This includes primary school, college and post-secondary education. Once a child reaches the age of 18, however, the child’s income may be examined to determine whether the amount of child support should be altered.

For more information on child support, and other family law matters, please visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

The amount of money that a non-custodial parent owes the custodial parent for the maintenance and support of their mutual children is determined by the Child Support Guidelines, adopted by the Federal Government in 1997. These guidelines apply to couples entering into a divorce agreement, under the Divorce Act, as well as to couples who were never married, or are entering into a separation agreement without getting a formal divorce, under the Family Law Act. The guidelines must apply whenever a parent seeks to alter current support arrangements, unless both parents and the judge agree that another arrangement is reasonable or the judge feels that the guidelines would be unfair if applied to a particular situation.

A Child Support Table sets out the specific amounts of child support to be paid. This amount depends on the:

• Gross income of the payor parent
• Number of children covered by a child support order
• Province and territory in which the parents live

The gross income of the payor parent is that person’s annual income prior to taxes and deductions. To demonstrate gross income, the payor parent typically presents a statement of income to the judge presiding over the child support case. However, sometimes a judge will not accept a statement of income. This often occurs when the parent:

• Fails to provide the required information
• Is purposefully unemployed or underemployed
• Is self-employed or fails to report the proper amount of income on tax returns

In these instances, the judge will use an amount of income that is based upon the parent’s work history, past income, and education.

There is a separate table for each province and territory in Canada . If both parents live in the same province, the table for that province applies. If the payor parent lives outside of Canada , the table for the province of the payee is used. If both parents live in Canada , but live in separate provinces, the table that applies is the one for the province where the payor parent resides. For instance, the Child Support Guidelines are applied if the payor parent lives in Ontario and the other parent lives elsewhere. Each table has slightly different figures, primarily dependent upon the standard of living in that particular area.

There are certain instances where a different amount of child support can be set. Increased amounts of support can be provided in instances where a child has special expenses, such as special education, childcare or medical needs. Likewise, decreased amounts of child support are permitted in instances where the payor parent demonstrates undue hardship.

Special expenses are those that are necessary because they are in a child’s best interests. Examples of such expenses include:

• Childcare expenses
• Medical insurance premiums
• Healthcare needs that exceed $100 and are not covered by insurance, such as orthodontic, prescription drug, counseling, or hearing aid costs
• Extraordinary expenses for primary and secondary education
• College tuition expenses

The parents may agree as to how special expenses, both current expenses and future expected expenses, are to be paid by the parents. Such an agreement must be reasonable in relation to the incomes of the parents and the family’s past spending patterns. If the parents cannot agree as to how special expenses are to be divided, a mediator can assist the parents in coming to an agreement, or a judge can be asked to make a decision for the parties.

Sometimes, the non-custodial parent may be financially unable to pay the amount of child support required in the Child Support Guidelines. In such situations, an alternative child support amount is determined either by agreement of the parties or by a judge.

To determine whether a parent is experiencing undue hardship, courts use two questions:

• Are there circumstances that could cause undue hardship for the parent?
• Does the parent claiming undue hardship have a lower standard of living than the other parent?

Circumstances that could cause undue hardship include:

• Unusually high debts resulting from supporting the family prior to separation
• Unusually high costs associated with access to a child
• Legal duty to support another person, including another child or another person who cannot support themselves due to illness, disability or another cause

Even if there are circumstances that could cause undue hardship, the parent requesting a deviation from the guidelines must also demonstrate that the standard of living in his household is less than that of the other parent.

The amount of support provided to a child may be reduced if each parent maintains partial custody of the child. Three instances of such arrangements exist:

• Shared child custody
• Split child custody
• Hybrid child custody arrangements

Shared child custody is a situation where a child spends equal time with each parent. The Child Support Guidelines define shared child custody as each parent having custody of the child at least 40 percent of the time. Shared custody child support is determined by a number of methods, such as the:

• Set-off method – determine the guideline amount for each parent and subtract the lower amount from the higher amount
• Revised set-off method – use the amount determined by the set-off method and then apply the percentage of time the child actually spends with that particular parent

Either of the above methods can be agreed to by the parents, or the revised set-off method can be applied by a court.

Split child custody exists when there is more than one child, and at least one child resides with each parent. Child support in this case depends on the income of both parents. Under the Child Support Guidelines, each parent is essentially charged support for the children living with the other parent, and the parent who owes more money must pay the difference in child support.

Hybrid situations often arise when there are three or more children and the custody of the children is split. For instance, one child may reside with the mother, one child may reside with the father and custody of the other child may be shared. Calculating child support in hybrid situations is often the most complicated.

For purposes of child support, a “child” may be the natural child of a parent or, in some instances, a step-child that a parent has treated as his or her own. If you raised a spouse’s child as your own, and later underwent a divorce, you may be responsible for providing support for that child. When determining whether a child was intended to be treated as one’s own, the court applies the following factors:

• Age of the child when the payor and child began living together
• Whether the child receives support from his or her natural parent
• The number of years that the child and payor have cohabited
• Whether the payor disciplined the child or claimed the child for income tax purposes
• Whether the child referred to the payor as a parent

While no one of these factors is dispositive of the issue, tax returns where a child is claimed as a dependent, cohabiting with a child who is under three years of age and references to the child as a son or daughter are all strong indications that there was a settled intention to treat the step-child as a natural child.

Under the Child Support Guidelines, there is no set termination date for child support. However, the Guidelines do specify that, once a child reaches the age of 18, that child’s income may be examined to determine an appropriate amount of support and the court may vary this amount in its discretion. Oftentimes, courts will continue child support in instances where children pursue post-secondary education.

For more information on child support, and other family law matters, please visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

If you are currently undergoing divorce proceedings, a paternity suit or any other child custody hearings, it is important that you understand the different types of child custody arrangements and how they will affect the interests of your child.

Child custody determines which parent has control over and responsibility for the care and well-being of a child. The custodial parent not only lives with the child, but also has the right to make decisions regarding the child’s religion, education and medical treatment. There are four main forms of child custody:

• Sole child custody
• Joint child custody
• Shared child custody
• Split child custody

Sole child custody means that only one parent is awarded custody of the child and, except during permitted visitation, the child resides with the custodial parent.

Joint child custody means that more than one person, typically both of the child’s parents, share custody of the child, although such custody is not necessarily equal.

Shared child custody occurs where there is joint custody and each parent has equal custody of the child, defined as having the child reside with each parent for at least 40% of the time.

Split child custody is where there are multiple children and each parent has custody of at least one child.

According to the Divorce Act the primary consideration in determining custody and access is the “best interests of the child.” Although parents may feel that they have a right to their children, it is the child’s rights, rather than the parents’, that are determinative in child custody and child visitation decisions. This is a factor that should be kept in mind at all times during custody proceedings.

Joint custody arrangements are often the most beneficial if the parents have a relatively harmonious relationship, because it allows both parents to maintain responsibility for their child. The parent who feels that joint custody is not in the child’s best interest has the burden of proving why this is true. Because joint custody often requires cooperation between the two parties, courts are hesitant to award such custody in situations where the parents do not get along well, or where the arrangement may otherwise not be in the best interest of the child.

If the parents have joint custody, each parent is entitled to full parental rights, regardless of which parent resides with the child for a larger percentage of the time. For instance, both parents have the right to meet with the child’s teachers and doctors, access the child’s medical and school records, and make important decisions regarding medical procedures, religious upbringing and education.

In instances where there is sole custody, the non-custodial parent is awarded access to the child through pre-determined child visitation rights. Child visitation includes, not only the right to visit with the child at set intervals (such as weekly, biweekly, or semimonthly), but also the right to access the child’s medical, school, and other records. The primary difference between a custodial parent with joint custody and a non-custodial parent without custody is that the custodial parent is entitled to make final decisions regarding the child, whereas the non-custodial parent may only access records regarding these decisions, without making the ultimate decision itself. The parent with custody has a duty to provide such information to the non-custodial parent on a regular basis.

Child visitation rights are considered fundamental and access to a child will only be denied in extreme cases, such as instances where there has been substantial child abuse. Even if a parent is denied child visitation rights, he must continue paying child support. Additionally, if a non-custodial parent fails to make a child support payment, the other parent cannot simply deny visitation rights until payment is made.

If the parents are on agreeable terms, access arrangements can be left flexible. The child custody agreement, or court order, will simply state that the non-custodial parent will have “reasonable access” to the child. This allows the parents to create a flexible agreement that is convenient, and that can be altered if any of the surrounding circumstances change.

Fixed access simply states how child visitation will be carried out. The child custody agreement, or court order, will state the frequency of such visits, where they will take place, and how long they will last. While this is less flexible than the reasonable access arrangement described above, it creates clear guidelines that must be followed, particularly by parents who are unable to get along.

If there are concerns over how a non-custodial parent may behave around a child, a judge may order supervised access. In such cases, the non-custodial parent has visitation rights, but another adult must be present when that parent and the child are together. The other adult may be a relative, friend, or worker at a Children’s Aid center. This form of visitation is often ordered where there has been a history of drug or alcohol use, child abuse or kidnapping attempts.

Child custody disputes typically involve the biological or adoptive parents of a child. However, in some instances, another family member, such as a grandparent, step-parent, aunt, or uncle, may be granted custody. Under Ontario law, any person may apply for custody. However, it is more difficult for a non-parent to obtain custody of a child, and such custody will only be granted in extreme circumstances, such as where the biological parents are not fit to care for the child. As in all cases, the best interests of the child will be the focus of the custody proceedings.

In addition to rare situations where non-parents are awarded custody of a child, other family members, commonly grandparents, may be granted visitation rights, particularly if they are related to a non-custodial parent who has been granted limited or no access to the child.

For more information on child custody, and other family law matters, please visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

According to child custody laws in the province of Ontario, if one parent is awarded sole custody of a child, or if there is split custody (an arrangement where each parent has sole custody of at least one of the children), the non-custodial parent will be awarded visitation (access) rights. Such rights include not only the right to see the child on a regular basis, but also the right to information about the health, education and well-being of the child.

Access and visitation rights are awarded because it is often in the best interests of the child to have a meaningful relationship with both parents. However, the parameters of such rights vary from case to case, depending on the circumstances surrounding the custody agreement. The parents may agree to certain visitation arrangements or, if they are unable to agree, a judge may specify visitation rights. Three common forms of visitation rights are reasonable access, fixed access and supervised access.

If the parents are on agreeable terms and wish to have a flexible access arrangement, they may simply include language in the custody agreement stating that the non-custodial parent will have “reasonable access” to the child. This indicates that the non-custodial parent will be able to visit with the child on a reasonable basis and that the custodial parent will not hinder that parent from doing so. However, visits are not necessarily set at particular dates and times, allowing for a flexible arrangement that is convenient and easily altered if any surrounding circumstances change.

If the parents tend to argue and will not likely be able to agree on flexible visitation terms, the child custody agreement, or court order, will likely specify “fixed access.” Fixed access states how often child visitation will occur, how such visits will take place, and how long each visit will last. This is a less flexible arrangement, but creates clear guidelines that must be followed by both parents.

If there are concerns over how a non-custodial parent may behave around a child, or about any difficulties during the actual exchange of a child between the parents, a judge may order supervised access. In such cases, the non-custodial parent has visitation rights, but another adult must be present when that parent and the child are together. This form of visitation is often ordered when there has been a lengthy separation between the parent and child, a history of drug or alcohol use by the non-custodial parent, child abuse or attempts.

When supervised exchanges take place, the other adult may be a relative or a friend. However, parents also have the option to participate through the Supervised Access Program offered through the Ministry of the Attorney General. Through this program, parents may simply take their children to supervised access centers, where children can be safely exchanged and safe visits can occur under the supervision of trained staff members. Safety measures taken by supervised access centers include staggered drop-off and pick-up hours, a front-door attendant, staff members who accompany children while at the center, security checks for staff members and volunteers kidnapping, and enclosed outdoor play areas. Not only does this program offer a safe haven for children to visit with their parents, it also allows the court system to monitor the visits and ensure that they are conducted in a safe manner.

Families are entitled to use the Supervised Access Program if they have a court order for supervised visits, or if both parties agree in writing to the use of a supervised access center. However, most supervised access centers charge a fee for using their services, although this fee is lowered, or waived, for families who are unable to pay the full amount.

Because courts usually feel that it is in the best interest of a child to maintain a relationship with both parents, child visitation and access rights are rarely denied. However, access may be denied when:

• There is a history of abuse, or neglect, and the child does not wish to see the non-custodial parent
• There is a history of abduction or not returning the child to the custodial parent

Even in these instances, the court will usually grant supervised or restricted access. Restricted access may include:

• A requirement that the parent not be under the influence of alcohol or drugs prior to, or during, visitation
• Requiring both parents to refrain from making negative comments about each other in the child’s presence
• Access required at the grandparents’ house or the home of the custodial parent

Access may still be denied if visitation is not appropriate, even with restrictions or supervision. Even if access is denied, the non-custodial parent must still continue paying child support and spousal support. Likewise, if a non-custodial parent is granted visitation rights in a divorce, the custodial parent may not deny access, even if the non-custodial parent is delinquent on Toronto child support payments.

Child custody and visitation disputes typically involve the biological or adoptive parents of a child. However, in some instances, another family member, such as a grandparent, step-parent, aunt, or uncle, may wish to have child visitation rights. The custodial parent may voluntarily grant access and visitation to anyone else who wishes to regularly visit the child. Under child visitation laws, even if the custodial parent refuses to voluntarily grant access to any other party, that person may apply for visitation rights. When determining whether to grant such rights, the court will look at the best interests of the child. More specifically, the court will determine whether it would be beneficial for the child to have a relationship with that person, and if the child already has a close relationship with that individual.

Child visitation agreements may be enforced by petitioning the court if the custodial parent is being denied custody. The court can then order the Sheriff to find and deliver the child to the custodial parent. If the non-custodial parent is violating the custody agreement or court order, the court may place restrictions on the visits, such as:

• Supervision of future visits
• Mediation of any disagreements that caused the violation of the custody agreement
• Access at a particular location

It is a criminal offense to remove a child from his custodial parent unless that parent consents, even if the person abducting the child is the child’s other biological parent. Accordingly, if your child has been abducted by his or her non-custodial parent, you can call the police and have that parent arrested.

For more information on child visitation and child access, and other family law matters, please visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

Divorce can be one of the most difficult times during an adult’s life, and this can become compounded by heart-wrenching issues surrounding child custody and access. Unfortunately, sometimes parents become so emotionally involved in trying to maintain a relationship with their children, that they actually abduct them and take them out of the province. Often, the non-custodial parent is the one engaging in such behavior but, occasionally, a custodial parent will leave the province with the children to prevent the other parent from getting access.

Even if you and your ex-spouse have deep personal issues or disagreements concerning child support, it is best that you try to maintain a reasonable level of tolerance in an attempt to preserve an amicable relationship. Doing so will create an atmosphere of trust that will make it less likely that either spouse will simply run away with the child.

Children under the age of 16 must have the consent of their parents to travel out of the country. However, in instances where the children’s parents are divorced, border agents do not always realize that the consent of both parents is not present. The best way to prevent this situation is to obtain a child custody order, which will serve as evidence that you have a right to the custody of your child. If your child is ever missing, you can notify any Canadian passport-issuing office to have your child’s name placed on the Passport Control List.

Some other suggestions for keeping your child safe and avoiding abduction include:

• If you are the custodial parent, keep your child’s passport in your possession at all times
• Retain a list of detailed information about your child, including the child’s place of birth, Canadian social security number, approximate height and weight, eye color, blood type and any identifying features
• Keep an up-to-date color photograph of your child
• Maintain copies of important documents, such as the marriage certificates, separation agreements, custody orders and the child’s birth certificate
• Teach your child how to make long-distance phone calls

The Hague Convention on the Civil Aspects of International Child Abduction (often simply referred to as the “Hague Convention “) is an international treaty that resolves cases of parental child abductions across international borders. Canada is one of approximately eighty member countries and the treaty is administered in Ontario through the Ministry of the Attorney General. The objectives of the Hague Convention are to promptly return an abducted child to his or her country of “habitual residence” and to enforce the custodial and access rights of the child’s parents. Additionally, the abducting parent can be extradited back to Canada , where he or she can face severe civil and criminal penalties, including the possibility of jail time, steep monetary penalties, a restriction of child visitation rights and the possibility of restraining orders.

If your child has been abducted, it is important to first contact the local, provincial or federal police as soon as possible to assist you in locating your child. Upon contacting the police, you should provide them with a copy of your child custody order, as well as any information that may assist them in identifying your child, such as recent photographs or descriptive information.

The police will then enter your child’s information into the Canadian Police Information Centre (CPIC) computer system, so that all Canadian police forces can access the information. Additionally, you may want to request that the information be entered into the United States’ National Crime Information Center (NCIC) computer system as well.

The police may then engage in the following activities in an attempt to locate your child:

• Notify school authorities of the abduction
• Review credit cards records of the abducting parent
• Search the abducting parent’s bank, phone company and airline records for an indication of where the child may be located
• Contact your child’s physicians or local hospital, if your child suffers from any chronic medical problems or requires regular medication
• Issuing warrants for the arrest of the abducting parent

Once the child is found, the matter may be brought before a local civil court. If, however, the child was taken across country borders, the Hague Convention may come into play and the Canadian courts will regain jurisdiction over the child, so that he or she may be brought back to Canada . If the child was taken to a country that does not subscribe to the Hague Convention , the child’s parent will need to have an after-the-fact custody order issued, if one was not previously obtained, and work with the other country to seek custody of the child.

For more information on child abduction and other family law matters, please visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

In Ontario, a restraining order is a court-sanctioned order that prevents an individual from doing something, typically communicating with another person (or persons). Courts will only grant such an order if it is demonstrated that there is a reasonable danger that one spouse will “molest, annoy or harass” the other spouse, or the parties’ child(ren). When determining whether an individual has been molested, annoyed or harassed, the courts look to the unique facts and circumstances surrounding each case, rather than applying a blanket test or set of criteria to all situations.

The Family Law Act is the relevant piece of legislation in Ontario that provides the Court with the power to protect the spouse and children of a particular individual with a restraining order, despite whether the incident is involved with divorce proceedings. Restraining orders may be obtained under Section 46 of this act. However, such orders will only apply to a spouse, former spouse or same-sex partner and the children of that spouse or partner. Additionally, because restraining orders concerning children may hinder child visitation or child custody, the courts will very carefully examine whether there truly is a danger to the child of being molested, annoyed, or harassed. Restraining orders for parents, siblings, friends or neighbors of a spouse do not fall within the jurisdiction of the Family Law Act and, as such, these types of relief must be sought under a different statute or common law principle.

A non-depletion order is another type of restraining order permitted under the Family Law Act . A non-depletion order may be requested if the spouses are facing disagreements concerning property division. Non-depletion orders are intended to protect a spouse’s entitlement to marital property by limiting the other spouse’s right to sell, encumber or otherwise dispose of the property. A spouse may request a non-depletion order if he or she is concerned that the other spouse may dispose of the property in order to defeat their former spouse’s claim to a share in the value of the this property via the Equalization of Net Family Property. This type of relief is dealt with in section 12 of the Family Law Act , permitting the court to make such an order if it considers the said order necessary for the protection of the other spouse’s interest in marital property. As such, the spouse requesting the order must present to the court some evidence demonstrating the likelihood that the property in question will be dissipated, disposed of, or encumbered if such an order is not granted.

A restraining order should only be sought in situations where an individual or his or her children are being harassed, molested or annoyed by a spouse or ex-spouse or where that individual perceives a real danger of such behavior taking place if a restraining Order is not granted. Once a restraining order is issued, the spouse or ex-spouse will be prohibited from speaking to or otherwise contacting that individual. If he or she does contact that person, he or she can be reported to the local police, arrested, and/or have steep fines issued. However, once a restraining order has been placed against someone, the person seeking the order must not communicate with him or her at all. If such a voluntary communication does occur, the courts will likely not enforce the order if it is later violated. Litigants should also bear in mind that restraining orders can be difficult to change once they have been made. As restraining orders are dealt with under the Family Law Act , they can be incorporated into a spouse’s Application to an Ontario Family Court.

If a person violates a restraining order, steep consequences may be imposed, including fines and possible jail time. First time violators face the possibility of a $5,000 penalty and up to three months in jail. Subsequent violations carry up to a $10,000 fine and up to two years in jail. Accordingly, if you have a restraining order against you that you feel is unfair, do not violate the order. Rather, you should attempt to have the order lifted through the court system.

For more information on restraining orders and other family law matters, please visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

Separation agreements are formal agreements entered into by both spouses that provide for the arrangements between parties upon separation or divorce. Such agreements include provisions regarding the division of property and set out the financial and support responsibilities of each spouse on an ongoing basis. Most courts prefer that spouses enter into a separation agreement as opposed to engaging in the family court system because the spouses are more capable of entering into an arrangement that will fulfill their needs than a Judge would be at ascertaining these needs and making an order that would meet them. Additionally, many couples enter into separation agreements because court proceedings can be expensive and time-consuming. Separation agreements also provide parties’ with a larger role in shaping their post-separation family. Separation agreements can resolve issues in a matter on a final or interim basis, depending on the needs and desires of the parties.

Each spouse is represented by separate legal counsel, who usually works together to draft and revise the separation agreement following discussions between the parties and/or their lawyers. If one spouse is not represented by legal counsel, that spouse must take the draft of the separation agreement to be reviewed by an independent lawyer prior to signing the agreement. One of the safeguards of a separation agreement is the Certificate of Independent Legal Advice, wherein each party’s lawyer signs off to indicate that they have provided their client with their objective legal opinion regarding the contents of the separation agreement. This is why each party requires a lawyer in order to execute a separation agreement.

If the parties are having difficulty coming to a consensus regarding any of the issues in the agreement, they may want to seek the assistance of a mediator, who can assist them in coming to a compromise. This can be done by the parties on their own, or with their counsel.

Once the spouses have agreed upon the final draft of the separation agreement, they must both sign the agreement in the presence of a witness. The witness must then sign the agreement to certify that the spouses both signed the agreement.

During the process of drafting a separation agreement, the spouses must disclose all financial information, including assets, debts, liabilities, and income, to the other spouse. Failure to do so can result in a court later setting aside the separation agreement. Additionally, this financial disclosure is required by the lawyers in order to formulate their objective, legal opinion in order to provide independent legal advice. It is impossible for a lawyer to comment on the fairness or desirability of an agreement without examining the other party’s financial circumstances.

One of the benefits of a separation agreement is that it can be crafted to meet each family’s unique needs. However, some typical terms included in separation agreements are as follows:

• Date of separation
• Child custody information, including:
  • Which spouse will have custody (meaning decision-making authority regarding the children)
  • Where the children will live, or their “residence”
  • Access arrangements, including not only the general access schedule but also provisions regarding holiday and vacation times
• Child support information, including:
  • The amount of child support payable
  • Duration of child support payments
• Timelines for the exchange of financial disclosure for future years
• Spousal support information, including:
  • Which spouse will pay support
  • Duration of support
  • Amount of spousal support payments
  • Whether support is waived
• Property division agreement, including:
  • Who gets which assets
  • Sale of property
• Who makes an equalization payment to whom and the quantum of the said payment
• Provisions regarding the matrimonial home (disposition and possession of same)
• Information regarding outstanding debts:
  • List of current outstanding debts, including credit cards, loans, and mortgages
  • Responsibility for each debt (i.e. which spouse will assume which debts)
  • Information regarding debts incurred after separation but prior to final divorce decree
• Information about pensions and other retirement accounts

Failure to include any of the above information can result in one of the spouses later filing suit in court to resolve an issue related to the separation, as it was not covered in the agreement.

For more information on separation agreements and other family law matters, please visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer