If you’ve read Part 1 of our posts on Going to Battle in Family Court, you’ve already learned some important tips that will help you organize your case and put your best foot forward. However, even the most organized person may still be shaken by the intimidating atmosphere of a courtroom. Consider these additional recommendations in preparing for your day in court:

• Investigate educational seminars in your community. Many courthouses offer free workshops where you can learn what to expect when you arrive for your day in court. Call or visit your local courthouse to ask for information, and take advantage of any classes that may benefit you. You can never be too prepared.

• Spend a day in court to learn about customs. Go to the courthouse where your matter will be heard. Spend a few hours in a courtroom watching the process and learning how lawyers present their cases. Take note of any tactics or customs that may be helpful to you. Remember, the judge in your case will not expect you to have the experience or knowledge of a lawyer, nor should you try to use sophisticated legal arguments or tactics. The purpose of this exercise is simply to familiarize yourself with the hearing process and courtroom customs.

• Maintain composure. This is where the organizational tactics discussed in Part 1 of these posts will help. Especially in family law matters, you should expect an emotionally-charged day in court. Do not expect your ex to follow the rules or play nice. By preparing for the worst and hoping for the best, you will be in a position to clearly present your case to the judge and will present as a level-headed, calm, reasonable person. Stay focused on presenting your case and remain as unemotional as possible.

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

Sincerely,

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

At MyOntarioDivorce.com, our goal is to help you resolve your issues without recourse to litigation, saving you time and money. However, there are certain situations where negotiations fail and spouses are left with no other choice than to put their matter in the hands of the court. The reality is that hiring a Family Lawyer to run a trial is an astronomically expensive venture that is simply impossible for many people. The alternative is representing yourself in court. Talk about being thrown into the deep end; not only is a courtroom a very intimidating environment, but it also has its own customs and language. Not an ideal situation for a person who is likely already stressed.

Representing yourself means that the onus is on you to present your best case to the court. Here are some tips to consider in preparing for your day in court:

• Document everything. Keep a calendar, day planner, or notebook and document any and all communications or events related to your divorce, custody, access, or support issues.

• Create a Statement of Facts. Start from the beginning. Set out the facts of your situation clearly and concisely so you can explain them to the court. Try to stick to the facts and leave emotions out of the equation. Going through this exercise will help you organize your thoughts and cover all of the issues you’ll be raising with the court.

• Organize your supporting documents in a binder. If you plan to tell the court that your ex threatened you in an email, be prepared to quickly access a printed copy of that email should the judge request it. Remember, your word is not sufficient proof that something happened; any concrete, objective proof you can provide will assist you in convincing the judge that you’re telling the truth.

Stay tuned for Part 2 of this article, coming next week.

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

Sincerely,

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

You’ve already read our tips on how to work with your ex-spouse to facilitate visitation in contentious parenting situations. But what happens if your ex-spouse doesn’t want to see your children? As unbelievable as it may seem, this is a sad reality for many families. Of course, it is the children who suffer the most when one parent chooses not to be an active participant in their lives. As the custodial parent, what can you do?

First, talk to your children about their frustrations. Parental rejection causes feelings of confusion, anger, sadness, and worthlessness in children. Encouraging your children to communicate their feelings about the situation can help you address specific concerns and dispel misunderstandings.

Refrain from expressing your own frustration in front of your children. If you find yourself dealing with parental rejection by your ex-spouse, chances are you’re harbouring a significant amount of anger and resentment. Exposing your frustrations to your children will only add to the conflict and can be a form of parental alienation. Approach your communications with your children with a view to assisting them in working through their issues without badmouthing your ex-spouse.

Speak to your ex-spouse. As unbelievable as it may seem, some parents lack the emotional intelligence to comprehend the negative impact that their absence may have on their children.

If your ex-spouse is a chronic no-show – that is, he or she consistently makes plans with your children and cancels them at the last minute or simply doesn’t show up – keep a list of activities in the back of your mind to distract your children from feelings of disappointment or rejection.

As in all communications with an ex-spouse, we encourage you to make every effort to maintain civility and stress the paramountcy of your children’s needs above your own.

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

Sincerely,

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

Whether your divorce is amicable or highly contentious, adjusting to a new life where you share time with your children can be a challenge. Where you once spent time as a family, you now have to leave your children in the care of your spouse. Depending on the circumstances of your separation, your relationship with your co-parent may be wrought with distrust, anxiety, or outright hostility.

Here are some tips to keep in mind when adjusting to the visitation process.

1. Set a schedule and stick to it.  Not only will this make things easier for you and your spouse by keeping communication and planning to a minimum, it will create a reliable and predictable routine for your children, who are likely in need of as much normality as they can get during this confusing time.

2. Accommodate travel requirements. It is a common scenario that one parent moves to a different city following separation or divorce. Work with your spouse to make arrangements to transport your children. In situations where air or long-distance travel is involved, consider allowing longer visitation periods so that your children can benefit from the maximum amount of time with their other parent.

3. Compromise, especially during holidays. If your spouse’s birthday falls on your weekend with the children, agree to switch weekends. Remember that it is important for your children to continue their relationship with your spouse’s family, too. For holidays such as Christmas or Thanksgiving, consider taking turns celebrating the day before or after.

4. Never, ever, EVER use visitation as a bargaining tool.  Children are surprisingly perceptive from a very young age. They will sense the tug-of-war between you and your spouse, which can cause lasting damage to your relationship with them.

While no shared parenting situation is easy, the parents who experience the most success are the ones who are able to put their personal issues on the back burner to prioritize the needs of their children.

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

Sincerely,

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

One of the most controversial issues in family law is the perceived gender bias in the family court system. Why is it that mothers so frequently are granted custody over fathers? Depending on whom you ask, you may receive very different answers to this question.

Certified Divorce Coach and Marriage Educator, Cathy Meyer, has investigated this topic in detail, and has come to the conclusion that courts are NOT the primary reason mothers retain custody in most divorces, nor are they responsible for the fact that many fathers have little to no involvement in their children’s lives post-divorce.

Meyer presents the following statistics from a Pew Research Center analysis of the National Survey of Family Growth, released in June 2011:

• Married fathers spend on average 6.5 hours per week participating in primary child-care activities with children, whereas married mothers spend on average 12.9 hours.
• Post-divorce, where the children live separately from their fathers, 22% of fathers see their children more than once a week, 29% see their children 1-4 times per month, and 27% have no contact with their children at all.

These statistics suggest that fathers are less involved than mothers in their children’s care both during the marriage and after divorce. Because the courts are most interested in maintaining the status quo where the children are concerned, it makes sense that in contentious cases, the court would order that the children remain with the mother.

Meyer also points out that in over 50% of divorce cases, parents agree on their own that the mother will be the custodial parent. In 91% of cases, custody is determined either before or during the settlement process, without the involvement of the court. Where the court is involved in fewer than 10% of custody decisions, it is difficult to establish a correlation between the low percentage of fathers with custody of their children and a perceived bias in the family court.

You can read the full article here.

Check back soon for our upcoming articles on Fathers and Divorce to learn more.

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

Sincerely,

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

In January 2013, Madam Justice Ruth Mesbur ruled that same-sex civil partnerships from foreign countries that don’t permit same-sex marriages may still be viewed as valid marriages under Canadian law.

The case in question involves two men who entered a civil union in London, England in 2009. Wayne Hincks and Gerardo Gallardo are both Canadian citizens, and moved to Toronto in 2010.  British law does not permit marriage between same-sex couples as is the case in Canada. Instead, they have a separate legal regime that allows same-sex couples to enter into civil partnerships. The difference between a marriage and a civil partnership is that those in civil partnerships will generally not have as many rights/entitlements as married spouses upon dissolution of the marriage. In Canada, we also have two separate legal regimes for common law and married spouses; however, Canadian law permits same-sex marriages, whereas British law does not.

The crux of the legal issue in this case was whether or not Mr. Hincks and Mr. Gallardo could be considered legally married in Canada, as their union was the result of a civil partnership ceremony and not a marriage. Or, more specifically, was either spouse entitled to receive the entitlements of a married spouse upon separation and/or divorce.

Justice Mesbur ruled that refusing a divorce would “constitute impermissible discrimination. It seems to me that to do anything other than recognize this particular civil partnership as a marriage would run contrary to the express values of Canadian society.”  The effect of this decision is that Mr. Hincks may now pursue an equalization and/or spousal support claim in Ontario.

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

Sincerely,

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

Determining the quantum and duration of spousal support can be complicated and unclear. Unlike child support, there are no federal or provincial tables that clearly set out your entitlements. While there are advisory guidelines that the courts have informally adopted, the determination of entitlement, quantum, and duration of support is ultimately at the court’s discretion. All spousal support orders aim to meet the following objectives:

1. To recognize any economic advantage or disadvantage to the spouse arising from the marriage or its breakdown. In arguing this point, it is important to make a connection between the marriage roles. A common example is where one parent quits his or her job to care for the children and now lacks the requisite experience or credentials to re-enter the workforce.
2. To compensate for hidden costs. This is a less common objective because the areas of compensation often overlap with child support. One example of this type of expense is a vehicle suitable for transporting children as a single parent. If you have six children and had previously shared transportation responsibilities with your spouse, you may need to purchase a larger vehicle to cope as a single parent.
3. To relieve any economic hardship of the spouses arising from the breakdown of the marriage. This is one of the more common objectives. “Economic Hardship” encompasses a number of items, such as loss of income stream, increased day care needs, and the cost of one spouse returning to school with a goal to enter or re-enter the workforce.
4. To promote the economic self-sufficiency of each spouse within a reasonable period of time. This point expands on point 3 and specifically recognizes the hidden costs of going back to work. This may include tuition costs, child care costs, and any other cost incurred as a result of re-entering the workforce.

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

Sincerely,

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

The process of separation and divorce can be overwhelming and confusing. At MyOntarioDivorce.com, we always encourage our clients to prioritize the needs of their children above all else. This is the same attitude taken by the family courts. In matters of custody and support, the court will opt for whichever arrangement holds the most benefit and least disruption of the status quo for the children. Here are some frequently asked questions regarding children and divorce:

My spouse and I can’t agree on arrangements for our children. Can I still get divorced?

In many cases, no. If reasonable arrangements have not been made for the children, it is a barrier to divorce, meaning the court may refuse to issue a divorce order until they are satisfied with the arrangements.

Remember, you must determine custody and access arrangements before you can determine child support. Child support is affected by the percentage of time each parent has the children and the lifestyle to which the children are accustomed.

My spouse and I want to separate but not divorce. How do I determine support payments?

In situations where the federal Divorce Act does not apply, look to your provincial Family Law Act. The FLA also offers child support guidelines, which are generally the same as the federal support guidelines, though in some cases the provisions other than the tables are slightly different.

I need child support and my divorce is nowhere near being settled. What can I do?

You can bring an application for corollary relief. In order to bring an application, you must answer YES to the following questions:

• Do you have a child?
• Is this a child of the marriage?
• Under/Over the age of majority and still dependent?
• Does the court have jurisdiction to make the order you’re seeking?

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

Sincerely,

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

In certain cases, a person who is not a biological parent of a child may be deemed to be a parent in the eyes of the law, and therefore may be responsible for the financial support of the child. For example, a step-parent who has been involved in a child’s life may be responsible for supporting that child in case of a separation or divorce.

The following are some of the questions considered by the court in determining whether a parent-child relationship exists:

• Does the child participate in family activities in the same manner as the biological children?
• Were the children all treated the same?
• Were financial provisions made for the child? (For example, were the child’s expenses paid for out of a joint bank account?)
• Does the parent in question discipline the child?
• Does the parent in question represent to the child, family, or others, either implicitly or explicitly, that they are a parent to the child?
• What is the nature of the relationship with the absent biological parent?

The court will look at the specifics of the situation and nature of the relationship between the alleged parent and the child to determine if that person is in “locis parentis” (factors as noted above). The child’s perspective is important, but is not definitive. Ultimately, a non-biological parent cannot unilaterally terminate a parental obligation once it has been established.

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

Sincerely,

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

At MyOntarioDivorce.com, our objective is to help you resolve your issues as quickly and efficiently as possible, while keeping litigation and costs to a minimum. There are a number of different approaches/models that family lawyers use to help you bring your separation or divorce to a resolution without going to court.

Collaborative Model:

Overview: You and your spouse will agree to resolve all issues (property, parenting, support) through a collaborative negotiation process. You will both be represented by lawyers trained in mediation. You will sign a collaborative agreement to be respectful, to make full disclosure, and to resolve your issues without going to court. While this approach requires a high level of commitment from both parties to be successful, it can be an effective approach where children are involved, as it can help facilitate a continuing relationship between the parties.

Mediation:

Overview: You and your spouse will agree to meet with a trained family law mediator. Mediators are neutral parties who are well versed in family law and who will be able to explain what is likely to happen should your matter end up before a judge. Many mediators are former or current lawyers. Mediators will make recommendations, but are unable to force you and your spouse to come to an agreement. If mediation fails, the next step is litigation.

Judicial Dispute Resolution (JDR):

Overview: This model is similar to the Mediation model outlined above, but instead of a mediator, you and your spouse will meet with a judge. The meeting does not take place in a formal courtroom, but rather in the judge’s office or a board room at the court house. As with mediation, the judge cannot order an agreement during the meeting, but he or she will tell you and your spouse what they would order if you were to take your matter to court. The benefit of this approach is that some people are more motivated to come to an agreement when they hear the facts from a judge.

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

Sincerely,

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