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

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

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

The majority of divorces in Canada are granted on the grounds of the parties having lived “separate and apart” for one year. We regularly receive questions from our clients about what exactly this means, and with good reason; it is a more complicated concept than it seems at first glance.

As lawyers, we are required to confirm that you and your spouse have, in fact, been living separate and apart for a minimum of one year. In order to meet the requirements of the Divorce Act, two aspects must be present:

1. Physical Separation, and
2. Intent to withdraw from marital consortium.

Here’s where things get complicated: “Physical separation” doesn’t necessarily have to mean that you are living in separate residences. Over the years, courts have determined that a husband and wife may be living under the same roof yet still be living separate and apart. Where a couple is still cohabiting, they must be able to show that:

1. They have withdrawn from matrimonial obligations with the intent of destroying matrimonial consortium, and
2. They are physically separated.

Courts will consider the following aspects in determining whether these requirements have been met:

1. Spouses occupy separate bedrooms
2. Absence of sexual relations
3. Little, if any, communication between spouses
4. Wife performing no domestic services for husband (and vice versa)
5. Eating meals separately
6. No social activities together

At the same time, if spouses are living in separate residences and are operating as husband and wife (for example, eating meals together or carrying on a sexual relationship), the intent to withdraw from marital consortium requirement will not be met.

And remember, any formal or informal reconciliation (including any of the above factors) during the one year separation period re-sets the clock and the year starts over.

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

Each of our clients comes to us with a unique set of circumstances and concerns. For parents who are considering separating or divorcing, the number one concern is almost always child custody. Especially in volatile relationships, our clients want to know what considerations go into a court’s custody decision. What if one parent is more financially stable than the other? What if one parent has a substance abuse or anger problem?

In matters of custody, courts are governed by the federal Divorce Act, which applies in all provinces. Section 16 outlines the factors to be considered in making custody orders. Here are some of the key sections that you should know about:

Section 16(8): Factors

Overall, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs, and other circumstances of the child.

Section 16(9): Past Conduct

The court shall NOT take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

For example, a parent may choose to patronize the local bar every night, but as long as the children are cared-for by a babysitter and their lives are not disrupted, the parent’s past behaviour will not negatively affect his/her custody rights. 

s.16(10): Maximum Contact

In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

This principle may also be applied to third party interveners, such as grandparents, who are no longer able to see the children because the custodial parent is unwilling to permit visitation.

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 our last article, we discussed the concept of annulment. Put simply, an annulment is a declaration that your marriage never existed; a “clean slate.” This is different from a divorce. In order for a divorce order to be issued, you must have a valid marriage; that is, you must meet the requirements of the Marriage Act. For an annulment to be ordered, a marriage may be deemed to be “Void” or “Voidable.”

Here’s what you need to know:

Void Marriages: These are marriages that never existed because one or more of the requirements under the marriage act is missing. Put simply, there is a “fatal flaw” that nullifies the marriage, whether or not the parties wish the marriage to be nullified.  An annulment is a legal declaration that the marriage never existed.

Examples of void marriages include those between relatives, those who are too young to legally marry, those where one of the spouses is legally married, and where there has been a case of mistaken identity. Until relatively recently, same-sex marriages would have been included in this category, but the law has changed to recognize them as valid.

A marriage may be challenged  as void by a third party, whereas a voidable marriage can only be challenged by one of the spouses. For example, it was the children of Anna Nicole Smith’s late husband who challenged the validity of their marriage.

Voidable Marriages: These are marriages that do exist, until a legal flaw is brought to the attention of the court by one of the parties.

A common factor in a voidable marriage is either the inability or refusal to consummate the marriage. Another instance is where one of the parties was unable to consent to the marriage as a result of intoxication or coercion.

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