Family Law Blog

JOHN SCHUMAN'S FAMILY LAW BLOG

Here is where you will find on-going up-to-date useful information on family law topics, such as separation, divorce, custody and access, child support, spousal support, property division, marriage contracts, family mediation and arbitration.  This blog is designed to answer your family law questions, so look around.

This blog will answer a lot of common family law, divorce, separation, and parenting issues.  If you are having trouble finding the information that you need, just use the search box on the left.  It will help you find the answers you need to your family law or divorce matter.

All of the answers are provided by a practicing Ontario Family Law/Divorce Lawyer.  However, note that small changes in circumstances can lead to a big change in how the law applies to the situation.  It is always important to discuss your particular circumstances with an experienced family law lawyer.  You can contact John Schuman at 416-446-5080 or by emailing him.  For more information about how to contact John, click here, and click here for more information about John.


Book - Guide to the Basics of Ontario Family Law

In addition to this blog, you can get a lot more information about Family Law in John Schuman’s book, The Guide to the Basics of Ontario Family Law, which is available from Amazon as a paperback or a $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone.


Don’t wait to get the Family Law information you need.  Not knowing how the law work has gotten many people into serious Family Law trouble.  Before your Divorce or child protection case goes wrong, find out how the law applies to you!

Can Parents Get Private School Tuition Back Due to COVID-19?

red-building-with-clock-tower-207692


Ontario students have been out of school for almost two months. Parents of children in the public school system have been struggling with helping their children through lessons at home with what many of them feel is inadequate support, especially for children with special learning needs.  Parent with children in private school have been facing that, and additional concerns regarding paying tuition.  Even though they are closed to students due to the pandemic, and many parents are struggling financially, some Ontario Private Schools are asking parents to pay for the 2020/2021 school year now.   Others are continuing to charge for school this year or are refusing any form of refund even though students are not going to school.   For parents who paid for boarding, that can be a lot of money and it seems particularly unfair since their children are not currently living at the school.   Unlike publ ic school parents, private school parents feel stung even more if the distance learning for their children is not meeting their expectations in light of what they paid.

 

There may be some legal relief for parents.  However, it may depend on whether their child is actually attending a “private school” and what the contract says if the child is in a  private school.  The video below goes over the importance of contracts when sending a child to private school.   

 


In the pandemic, parents must determine whether their child is attending a “private school” or a “daycare".  Under Ontario’s Education Act, is a private school is an institution that provides instruction to students between the ages of 6 and 18 years old.  Organizations that provide instructions to children under the age of six do not fall under the definition of "private school", but probably fall under the definition of “daycare". On April 9, 2020, the Ontario Government passed a regulation prohibiting closed daycares from charging fees for the period while they are closed.   So, parents of students who are three, four or five years old do not have to pay tuition fees because daycares cannot legally charge them.

 

For students aged 6-18, things may be more complicated.  As noted above, a lot depends on the contract that the parents signed with the school.  There is always a contract.  At some point parents signed something agreeing to pay the tuition fees.  Sometimes that is all the contract says, but often it requires that students and parents conform to a code of conduct, it may set out rules or expectations for what type of education the school will provide, and it may contain terms about when the school can stop providing lessons to a student and whether tuition will be refunded if the school does stop teaching a child. 

 

There is no “standard private school contract” in Ontario.  Every school comes up with its own contract with parents.  Many schools change the contract every year and base the changes on challenges the school has faced in the year before.  So, parents have to find that contract and see what it says about what happens if the school says a student cannot attend class anymore.  The wording of that term may or may not address what happens in situations where the school is forced to shut down or provide online lessons.  (It is almost certain that privates school contracts will have explicit terms to address the situation starting in 2020/2021).

 

Ontario Family Law Podcast

In many cases, what is happening in the pandemic is far from what the private school contract contemplated.  In situations where the parties to a contract cannot perform their obligations under the contract due to circumstances beyond their control, the contract is said to be “frustrated.”  Ontario’s Frustrated Contracts Act applies to contracts between private schools and parents.

 

38 - Ontario Private Schools, Standards, and Education Law

39 - What Ontario Public Schools Must Do About Bullying

Due to the pandemic, private schools may not be providing the education that parents were promised under the contract.  On March 17, the Ontario Government ordered that all private schools be closed indefinitely.  That was not the private schools’ fault.  Nor is it the parent’s fault.  So, the parent’s contract with the private school was frustrated by the ordered school closing, unless the school is providing comparable educational services to what it provided before March Break.

 

In these circumstances, section 3 of the Frustrated Contract Act says that payments are no longer owing for frustrated contracts.  The parents do not have to pay anything that they continue to owe the school under their current contract (presumably the contract is only for the 2019/2020 school year) and they don’t have to pay anything further under the contract.  The same rules apply to the school about paying anything back.  So, where parents have not finished paying for 2019/2020, they may be safe to tell the school they are not going to pay for anything after March 17, 2020.

 


Where parents have already paid for the school year, but their child is not receiving the education promised under the contract, there may be a breach of contract and the parents may be able to demand repayment.  Section 18(2) of the Consumers Protection Act allows consumers to recover any payment that exceeds the value of goods or services provided to the consumer.  So, there will be a question about whether the parents got what they paid for.  To some extent this will relate to what the school promised in the contract.  Many schools actually do not promise much in the contract.  However, it may be possible that the school made promises on their website or elsewhere on which the parents relied.  In that case, those promises may also form part of the contract.

 

However, as this is a matter of straight contract law, the best option is for parents to speak to an Education Lawyer about their rights under the contract to see if they can get any money back.

 

When dealing with private schools, the parents have to consider another aspect of their relationship with the private school and possibly their contract with the private school.  That consideration is whether they want to their child to continue to attend the school.  


Many private schools operate on razor thin margins.  The educators operate them do so for the love of teaching and do not operate to earn large profits.   For 2020/2021, the Ontario Government pays school boards up to $6,274.76 per elementary school student, but that does not include additional amounts to pay for school supplies, principals, vice-principals, school-secretaries, students with special needs, building operation and maintenance and may other costs, which equate to several thousand dollars more per student.  Parents should keep that in mind when considering whether the private school has any additional funds available to pay parents back – especially at a time when private schools may be trying to continue to pay teachers their full salaries to stop those teachers from leaving for another school.  So, a private school may not take kindly to a parent demanding money back.

 

Many private school contracts provide that they can “kick out” a student at any time for any reason.  Others state that they do not have to “invite” students back for the next academic year.  So, parents who create difficulties for a private school may find that their children are no longer able to attend that school.   The school’s contract with parents may allow that. 


Another trick that some private schools are trying is to say that if parents do not pay, they will not assist students or mark their assignments and tests, which will result in lower marks on the final report card.  Again, this something that the Ontario Government is not allowing.   The Ministry of Education Guidelines for Continuity of Learning During COVID19 say that teachers must use the evaluations of students completed before March 13, 2020, unless it is in the student’s interest to include later material.  That sounds like marks can only go up after March 12, 2020.  While that may or may not be the case, it is clear that schools cannot lower a students marks because parents are not paying tuition during the pandemic.    


So, again, when parents or students are facing these types of difficulties, it is critical for them to speak to an education lawyer.


In these difficult situations, it may be necessary for parents to have a conversation with the private school about what payments is fair under the circumstances.  Of course, it is important for parents to understand where they stand legally before having that conversation.  However, with the Ontario Courts essentially closed to these types of matters, many people have worked out disputes through negotiations and discussions.  That approach may address financial concerns and keep a child in the school that they love.


If you are experiencing difficulties with a private school, it is important to figure out what rights you may have, and how the law might help you. Contact Education Lawyer, John Schuman, by emailing him, calling 416-446-5080, or using the contact form below.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).


For more information about Private Schools and Ontario Education Law, and other education law issues, such as assistance for children with special needs and school discipline such suspensions and expulsions, check out the Education Law section of this website.


Many thousands of people get family law assistance from this website everyday.  If you have found this page useful, please share it on your social network using the Facebook, Twitter, LinkedIn and Pinterest buttons at the bottom of the page.  Please comment on this page using the comments section at the bottom to share your thoughts on the challenges children face in school and the education system.


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The COVID19-Family Law Property SCAM That Can Cost Spouses Hundreds of Thousands


FAMILY LAW COVID19 RESOURCE CENTRE


COVID 19 Property SCAM Podcast


Even during this pandemic, there are some separated or separating spouses who are trying to take advantage of the situation, and the operation of Part 1 of Ontario’s Family Law Act, to try to get ALL of their ex’s wealth. It is important for married spouses to understand how that can happen, so they can plan accordingly.

 


 

Up until COVID19 hit, when it came to property matters, separated spouses were more concerned about what happens when assets increase significantly after separation and when those separated spouses share in that increase and when they don’t.  Unfortunately, due to the COVID19, the economy is facing the opposite situation, with people’s RRSPs and other investment savings plummeting in value.  Even with the Courts almost completely closed, many spouses are making legal claims to try to get ALL of what their ex has left. There may be some situations where that is the proper result, but it most it is not.  This type of action is not unique to COVID19.   It is also a concern whenever the economy takes a downturn. It was also a problem in 2008 and 2009.



 

To understand how his scam works, it is necessary to understand how property division works after a marriage.  There is no property division for common law couples under Ontario’s Family Law Act.  To briefly summarize and simplify how property divison works (follow the links for a complete explanation), with some exceptions, married couples share the increase in their net worths from their date of marriage to the day they separate. That makes those two dates very important.  With the possible exception of matrimonial homes, married spouses start counting how much they have, and really how much what they have is increasing in value from the date of marriage.   For the purposes of property division under Ontario’s Family Law Act, they stop considering their increase in net worth on the date they separate.  But, in these trouble times, that same law means that they stop counting any decrease in network on the date of separation too.  

 



The value of what a spouse owns before the date of marriage and after the date of separation don’t matter.  All that matters is what the married spouses had on those two dates. That fact is what makes this scam work.

 

Ontario Family Law Podcast

48 - The COVID19 Family Law Property SCAM

47 - How COVID19 affects Child Support and Spousal Support

46 - Do Parenting Plans and Family Court Orders Continue During COVID-19?

45 - Resolving Family Law Disputes While the Family Courts Are Closed Due to COVID-19

9 - Property Division in Ontario After Marriage

29 - Common Law Separation and Property Division

40 - How to Keep Your Money in Separation and Divorce

Ontario Family Law recognizes that spouses do not have to physically separate, meaning one spouse walking out of the home, for the spouse to be separated.  The law recognizes that spouses can live “separate and apart under the same roof.”  The law says that when the spouses move apart is not necessarily the important date for property division, the date is when they stop living together as husband and wife, even if they continue to reside under the same roof.

 

That gives at least one spouse a big incentive to say the marriage was over, and the parties stopped living as husband and wife BEFORE the COVID19 crisis hit.  It gives an incentive to say the marriage ended before the value of their spouse’s assets plummeted – and to say that they were just sharing the same space as co-tenants, not as spouses anymore.

 

To illustrate the advantage this gives, consider a situation where one spouse had $500,000 in investments, but no other significant assets on January 1, 2020 and the other spouse had very little.  By the end of March, those investments have fallen to $250,000 in value and the stress of being isolated together in the home means that one spouse walks out.  But, that spouse with no assets does not want to share in $250,000.   That spouse wants to share in $500,000.   So, that spouse says they separated – stopped living like spouses -  on January 1 when the investments were worth $500,000.  Under Ontario Ontario’s property equalization scheme, that means that spouse would be owed and equalization payment of half the assets on January 1 - $250,000 – or ALL of what his or her ex has left.

 

That is an extreme case. Most won’t have results that bad.  But, it illustrates the point.

 

Of course, the opposite it also true.   If the spouses had a big fight on New Years, never got along afterward, and stopped living like spouses then, the spouse with the investments has a BIG INCENTIVE to try to reconcile the relationship, even briefly, while the investment value has cratered.  Because, if the spouses rekindle their relationship, even for a couple of days or nights, the date of separation becomes that last date, and they share in the LOW value for the assets.  That could be a big help, particularly if everyone’s investments rebound after the crisis.

 

The law is not so unreasonable as to allow one spouse to pick the date of separation that benefits him or her the most.  If the parties cannot agree, it is a judge or family arbitrator that decides.  With so much money potentially at stake, there is clear incentive for one spouse to lie or stretch the truth. Consequently, judges try to look at the facts objectively and ask themselves: “When would an objective person, who knew the couple, say the relationship was over?”  In determining that, it is not just when the couple stopped having sex, or even when one spouse started having an affair (some relationships recover from that).  The judge (or arbitrator) looks at factors such as

  •  when the spouses stopped eating together,
  • when they stopped going out or vacationing together,
  •  when they stopped showing signs of affection for each other,
  •  when they stopped referring to each other as spouses,
  •  when they took the wedding rings off
  •  when they separated their finances (opened separate accounts or stopped paying each other’s bills)
  • many other possible factors depending on the family’s situation.

 

Determining when spouses separated in these difficult circumstances can be open to argument.  Also, the separation date can be very dependent on the specific facts of the individual case. Since there can be a lot of money at stake, it is important for spouses in the midst of a separation to get in touch with a lawyer who can provide advice based on the specifics of the individual situation.  The lawyer can advise on the best thing to do in the particular situation of each case.  The specific circumstances can make a big difference on what a separating spouse should do to protect himself or herself. It can be important even for someone to speak to a lawyer before he or she walks out to determine when might be the best time to do that, or even if that matters anymore.  top family law lawyer can give you advice about your options and how to get to the result that is best for you.  In these situations, the lawyer’s advice can save a spouse thousands, even hundreds of thousands, of dollars – especially when it helps avoid a scam.

Guide to the Basics of Ontario Family Law - 4th edition cover

 

To get the best advice, specific to your situation, you should speak to family lawyer.  Certified Specialist in Family Law, John Schuman, is known for his concern for children in separation and divorce and has won many child custody cases.  To contact John call 416-446-5807, email him, or fill out the form below. You can use the same form to comment on this page.

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New Kobo Logo

Paperback available from:

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You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of the Family Law related to parenting after separation, child support, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback.

   

Many thousands of people get family law assistance from this website everyday.  If you have found this page useful, please share it on your social network using the Facebook, Twitter, LinkedIn and Pinterest buttons at the bottom of the page.  Please comment on this page using the comments section at the bottom to share your thoughts on the best ways to resolve matters for your children after a separation. 

 

Contact Us / Comment:



How COVID19 Affects Child Support and Spousal Support

FAMILY LAW COVID19 RESOURCE CENTRE


COVID19 and Support Podcast


The Corona Virus has had a previously unimaginable impact on our economy and the incomes of many Canadian. COVID19 has put many people out of work, reduced the incomes of many others and completely shut down some businesses, leaving the owners with no money at all.  What does that mean for child support and spousal support obligations?   In the short run, probably very little.  In the long run, perhaps a lot. 


The government has not enacted any new laws to change support obligations as a result of the Corona Virus.  Unless the support payer and the support recipient agree to something different, support continues as set out in the last court order or separation agreement.  The children or spouse who are dependent on that support remain dependent on that support.  



However, many support payers feel that the children or their ex cannot have financial security that they do not have themselves – especially when there is no money left. 


In ordinary situations, if a support payer’s income dropped and the recipient did not agree to change support, the payer could go to court and ask for a change.  But now the courts are closed to all but the mom desperate Family Law cases and for many judges cases about the best interests of children have to take priority over all financial matters.  All the reported Family Law cases since the start of the  corona virus crisis have dealt with looking after children.  Click to read this page that has up-to-date information about what judges have decided in those cases. 




As of April 6, 2020, the Superior Court of Justice started trying to hear more cases after having increased its capacity to deal with cases electronically.  But only the Superior Court for the City of Toronto will start hearing contested support motions without a judge first assessing whether the parties cases are so dire that urgent relief is necessary.  However, even in Toronto, the Court will only hear support motions that are necessary to preserve financial stability for the family.  For most of Ontario, the Court will only make new support orders where the situation faced by at least one party is truly catastrophic or where the parties have agreed to the order. 


Ontario Family Law Podcast

45 - Resolving Family Law Disputes While the Family Courts Are Closed Due to COVID-19

46 - Do Parenting Plans and Family Court Orders Continue During COVID-19?

47 - How COVID19 affects Child Support and Spousal Support

10 - Child Support - Who Pays and How Much?

13 - Spousal Support in Ontario and Canada

32 - How to Change a Support Order

35 - Resolving Children's Issues Outside of Court

With that said, for support payers who are having their support deducted directly from their pay, a reduction in pay may mean a reduction in how much money the payroll department sends to the Family Responsibility Office.  Pursuant to section 23(1) of Ontario’s Family Responsibility and Support Arrears Enforcement Act, 1996, the FRO can only get half of a support payor’s pay, so when pay goes down, the FRO will never get more than half.  


Similarly, if a support payer is suddenly on employment insurance, the FRO will still collect support from those payments, but the amount it can take may be much less. That can mean a reduction in the support collected.


It does not mean a reduction in the support owed.  Arrears of support will accumulate under the last support order unless the parties agree, or a court expunges those arrears later.


Also, like many other workplaces, the FRO has been affected by COVID19.  Their operations have been disrupted. The FRO has also recognized that it cannot strain the court system by using it to take aggressive support enforcement steps. So it will not be going after unpaid support as enthusiastically as usual. Again, that does not mean that the amount of support owing has changed.  In only means that the FRO Is not collecting the  support now.  The agency will collected the missed support payments later unless there is a new court order or written separation agreement that changes the amount owed. 


In the short term, support payers should be continuing to do their best to abide by their support obligations.  Their failure to do so may result in more enforcement measures or a court case later.


When the courts start to reopen, and support enforcement becomes likely again, there will lots of court cases about whether support should be reduced because that support payer’s income has gone down.  Lotos of families will be using the special, simplified, court procedure to change a support order or agreement.   Child support is supposed to change with the payer’s income.   Spousal support may change depending on the terms of the order or agreement. 




Support can change when the payer’s income changes. It looks like many people will see their income go down in 2020.  How much and for how long will be considerations for a judge.  A short blip may not justify changing support.  Something more could. With that in mind, an issue will be how quickly judges will jump in to change support.  They will not want to reduce support if it is just going to go up again in the near future when everything returns to normal.  However, a  judge  might consider reducing arrears accumulated if COVID19 was the cause of the missed payments.


How quickly support can change will be another issue. Section 16 of the Child Support Guidelines contemplates using the parents’ tax returns as the basis for calculating income for support.  As a result, many people adjust support, especially child support, when their tax returns are ready for the previous year because that is when there is a clear picture of what their income was.  In those cases, support is based on the income from the year before.  Support payers who income went down in 2020, may see their support payments go down in 2021, and then adjusted again in 2022 depending on how 2021 works out.


But, court decisions under the Child Support Guidelines also stress the importance of using  the most recent income information.  It is not necessary to wait for the T4s to come out next year to adjust income, particularly where the support payer is in financial hardship.  But, that will require convincing either the parent receiving support or the judge that change in income is permanent and is going to go past the end of COVID19.  After that, the support payer will have to establish what his or her new income is.  So, it may be better to be patient to let what the new income is become clear before running to court and using up the Court’s time and a lot of legal fees.  




On the other hand, judges do not like it when support payers unilaterally impose a change in support.  And one of the things that the payer must do to get an Order stopping the FRO from taking a license is start the court proceeding to change support.  So, it may be good to wait before running off to court, but not to wait too long.


However, when a judge does change support, section 34(1)(f) of the Family Law Act says that  the judge can change support  retroactively.  That means that a judge can order the return of an overpayment of support or more likely a credit against future support that can result in a support holiday going forward.  In D.B.S. v. S.R.G., the Supreme Court of Canada held that a judge can order a retroactive adjustment of support back to the date that one party can prove that he or she put the other party on notice that a chance so support was required.  So, if your income has gone down, now is the time to send that email telling your ex that and asking to change support.  Even if your ex says no, if your circumstances have changed, the judge may fix that later. 


If your ex does agree, as of April 6, the courts have been making new support orders when both parties agree.  That can change the amount the FRO collects, even if it is only temporarily. 


if you are not getting your full support payments, now is not going to be the time to get the FRO to take drastic support enforcement measures. The Order will stay as it is, and the arrears will accrue.  When this is over the FRO will take enforcement steps.  And, if your ex is just using COVID19 as an excuse to not pay support, then you will have an opportunity to explain that to the judge later, when everything, including your support, should have returned to normal.



Of course, parent do not have to wait for the courts to reopen to resolve support or any other family law matters.  Separated parents and spouses can use arbitration and family mediation to replace the Courts while they are closed, and even when they are not.



If you are having support problems, then it really is time for you to get in touch with a lawyer who can give you some advice based on the specifics of your situation.  Even during the Corona Virus crisis, it is possible that lawyer can contact your ex's lawyer and they can work something out.  A top family law lawyer can give you advice about your options and how to get to the result that is best for you. 

Guide to the Basics of Ontario Family Law - 4th edition cover


To get the best advice, specific to your situation, you should speak to family lawyer.  Certified Specialist in Family Law, John Schuman, is known for his concern for children in separation and divorce and has won many child custody cases.  To contact John call 416-446-5807, email him, or fill out the form below. You can use the same form to comment on this page.

Get_it_on_iBooks_Badge_US_1114
new kindle logo
New Kobo Logo

Paperback available from:

amazonlogo

           

You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of the Family Law related to parenting after separation, child support, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback.

   

Many thousands of people get family law assistance from this website everyday.  If you have found this page useful, please share it on your social network using the Facebook, Twitter, LinkedIn and Pinterest buttons at the bottom of the page.  Please comment on this page using the comments section at the bottom to share your thoughts on the best ways to resolve matters for your children after a separation. 

 

Contact Us / Comment:



Does COVIT-19 Mean You Legally Can Stop Your Ex From Seeing the Kids

FAMILY LAW COVID19 RESOURCE CENTRE


COVID 19 Podcast 2


The corona virus crisis is having a profound impact on every aspect of our society.  With all the significant changes in the way that everyone is living every aspect of everyday life, and all the new public health requirements, separated parents are having questions about whether they should continue to follow the current parenting scheduled as set out in a Parenting Order or to an agreement with their ex.  All that is happening at a time when the Ontario court system is almost shut down and dealing with only the most desperate situations through telephone hearings.  However, in the last few weeks, there have been several court decisions that confirm that established principles under our family laws continue to apply even during COVID-19.  There are links to the Court decisions on this page.


At the outset, it is important to remember that parenting cases are the ones that are most often depend on the particular facts of each case.  Every family is unique and so are almost every parenting order that a Court makes.  There can be little things about the circumstances of your particular children, or the history of your particular case that would make a big difference in how a judge will see things.  Also, in times of stress and panic, it is possible that a judge would not see things the same way parents see them while working under the stress of the pandemic.   So, it remains important to get a lawyer who is knowledgeable about your specific circumstances and can give you carefully considered advice.   If you have concerns about whether to continue to follow your existing parenting agreement or court order, then you should speak to your lawyer for advice,  contact Certified Specialist in Family Law, John Schuman, and his team by calling Hannah, at 416-446-5807 for consultations, at reduced rates, by telephone and video conference to avoid the transmission of the virus.


Almost all separated parents had parenting arrangements in place before the coronavirus virus crisis.  The question many of those parents are asking is  whether COVID-10 means that they have to change their parenting arrangements.  Making the wrong choice can lead to serious legal problems.  In cases involving children, the overriding principle is what is in the best interests of the child.  Court cases during COVID19 confirm that continues to be the case.  So, the question ever parent has to ask is: “Is in the best interest of my children to change the current parenting arrangements?"



With the encouragement from public health officials to limit contact with other people, it seems like it might be in the children's best interest to stay in one spot and have contact with as few people as possible.  It would not be in the children's best interest to engage in any activity that could put them at risk of infection.  That certainly has impacted what parents are doing with their children on a daily basis throughout this crisis.


However, the current view of parenting professionals and judges is that having contact with both parents is important to a child's sense of well-being and healthy development.  This means that seeing both parents is also in the child's best interest.  Children suffer when deprived of contact with their one of their parents.  They suffer even more when there is conflict between their parents over things like the schedule.  So, one parent disturbing the existing parenting arrangements without the other parent’s agreement could lead to some serious situations and repercussions, perhaps even serious consequences imposed by the judge down the road.  Ontario Courts have continued to apply this principle during COVID19.


However, where a parent has not pursued parenting time, or regular parenting time before COVID19, the Court is not going to entertain a request to set up regular parenting time during the pandemic.  Children need consistency and peace during this time.  They do not need added stress, exposure to conflict, or big changes top their lives.


Many separated parents may be temped to interfere with the existing parenting arrangements amid COVID-19, citing safety concerns as the rationale, but the courts in Ontario have been pointedly clear that this is not appropriate. Worse, if a parent does unilaterally alter the child(ren)’s schedule with the other parent during COVID19, the Courts have been clear that there may be consequences for that parent once regular court operations resume


Justice Pazaratz of the Ontario Superior Court  (Family Court) made one of the first decisions when a parent cuts off the other parent due to COVID19.  Many other judges have followed that decision. Her Honour was clear that existing parenting arrangements and schedules should continue in the majority of cases, while potentially making changes to transportation or exchange locations to ensure physical distancing guidelines are followed.  


To summarize the decision that parents have to make, it is: “Is in the children's best interest to remain isolated with one parent, so as to avoid the chance of infection, or is it in the children's best interest to spend time with both parents even if that means they will come into contact with other people.”

 

Again, a lot depends on the new specifics of the situation.  If the children can go from one asymptomatic parent to the other parent through a method of travel that does not involve them coming into contact with a lot of other people, and both parents are not going to engage in behaviors that are currently considered risky or that could result in the spread of the virus, then there may be no reason to change the arrangements at all. However, a parenting doing something that will expose him/herself  or the child to an increased risk of contracting the virus does justify changing the parenting arrangements.


When separated parents can be cooperative, even creative, it may be possible to make changes to the parenting arrangement to benefit the children.  Perhaps changing the current arrangements is in the children's best interest.  Judges expect separated parents to cooperate and make those changes together at all times, but especially during COVID19.  Judges are not happy with parents who cannot put their children first and find ways to cooperate.  For example, with the disruptions to workplaces, it may be that one parent has more ability to look after the children, especially at times of the other parent continues to go to work.  This can be especially important with schools and daycares closed.  Through cooperation, parents can also make adjustments to their schedules to minimize the number of other people with whom the children come into contact, and thereby reduce the chances of transmission of the virus.  Similarly, to avoid the children being exposed to infection, it may be beneficial to adjust the schedule, to reduce the number of time children go back and forth between a parents so that the children have fewer opportunities to be exposed.

Ontario Family Law Podcast


46 - Do Parenting Plans and Family Court Orders Continue During COVID-19?

47 - How COVID19 affects Child Support and Spousal Support

45 - Resolving Family Law Disputes While the Family Courts Are Closed Due to COVID-19

7 - Custody of the Children - what it means and how it is decided

35 - Resolving Children's Issues Outside of Court

Another consideration at this time is that some parenting arrangements have the children being exchanged between parents at a public place, with other people around.  In the current situation that is no not recommended.  You and your ex want to do the exchange of the children at a place away from other people.  So, you may need to change where do it.  If there are ongoing safety concerns and that is the reason why the exchanges are where it are, then you will you may still need to change the location to keep yourself away from other people, but still do it in a place where you are visible so that nothing stupid can happen.  Perhaps you'll have to move to a place that is further away from other people but still has people close enough around so that they can notice any difficulty from a distance.  Perhaps you will have to move your meetings to be in the vicinity of a police station or someplace else where people can intervene if something goes wrong even if those other people are at a distance during the exchange itself.  Remember, the only thing you should be concerned about is the best interests of your children making arrangements.


Where one parent is worried about his or her ability to keep the children safe from infection, then it may be possible for the children to maintain contact with both parents over Face Time Skype, or other videoconferencing or other methods of communication.  For example, parents could still interact with their kids by playing video games that allow players to play together from different locations.  Parents have to balance all the considerations to determine what is in the children's best interest. However, the courts have been clear that these types of parental contact are not sufficient and should only  be put in place when there is a real danger to the child’s safety by being with the other parent.  Real danger means the parent must have been advised by a public health to go into self-isolation, be a confirmed or presumptive case of COVID19 or be actually engaging in risky behaviours. 


Being employed in health-care, as a first responder, or as any other type of front-line work is not engaging in risky behaviour that should result in a change to the parenting arrangements.  People holding those positions work with their employers to put into place measures to protect them from contracting the virus.  The screening tools for COVID19 consider whether a person has been in contact with someone with COVID19 without necessary Personal Protective Equipment in place.  It is an usually foolish and selfish parent who does not wear PPE during this crisis if only out of concern for the children.  So, before changing parenting arrangements, judges want to see evidence that a parent is being reckless and not wearing the PPE or otherwise putting him or herself at unusually  high risk. 


Obviously, things become more difficult when one parent decides that he or she does not want to follow the advice of public health officials.  Or, when a parent insists on engaging in other risky behavior at this unusual time.  Chances are that if a parent is going to engage in risky behavior now, they probably have engaged in it before and the parenting arrangements take that into account.  If the arrangements do take that type of behavior into account, then no change may be necessary.  However, if a parent is insisting on doing engaging with the children in activities that are clearly not the children's best interest in light of the advice and information from our public health officials, then a parent may have to insist on changing the arrangement.


If an issue does arise with respect to the existing parenting arrangements, such that it is no longer safe to facilitate parenting-time between a child and one parent, the circumstances may meet the test for “urgency”, which would allow a concerned parent to get the matter decided by a Judge under the special provisions that the Ontario Courts have put in place during COVID19. In order for your matter to be considered “urgent”, based on the jurisprudence to date in this unprecedented area:

  1. The parent’s concern must be immediate, meaning that in no circumstances could it wait for resolution at a later date;
  2. The parent’s concern must be serious enough in that it significantly affects the health, safety or economic well-being of the children or one or both of the parents; and
  3. The parent’s concern has to be rooted in real evidence. It cannot be speculative or theoretical.
  4. The parent’s concerns must be clearly particularized in evidence with examples that describe the concern and why it is urgent.



There are very few circumstances in which a judge will find that deliberately breaching a court order is okay.  Judge can throw people in jail when they deliberately go against Court Orders.  Judges also expect parents to respect and follow their parenting agreement. So, i any parent who thinks they have to stop their child from seeing the other parent MUST speak to a lawyer about getting into Court to get a judge’s permission to change the existing arrangements.


Similarly, if you are a parent who wants to see your children but is worried that you have been exposed to the coronavirus now is not the time to insist on your parental rights.  There are no parental rights in Ontario. There are only parental responsibilities and your children have rights.  Children have the right not be placed into danger unnecessarily, especially not by their parents whose main concern should be protecting them during these dangerous times.  No judge is going to be sympathetic to any parent who puts the misconceived idea of “parent rights” ahead of the children’s safety or who hide the fact that the parent is a carrier of this virus and puts the children at risk of contracting it.

 

Procedures like family arbitration or parenting coordination may also give parents a procedure to resolve these types of disagreements more quickly and more easily than trying to get into Court during COVID19.  While both parents have to agree to use those mechanisms, suggesting to an ex that it would be good to have an impartial professional weight on what would be in the children's best interest will show the court that parent at least tried to work things out and that may give some assurance that a judge will not be terribly upset by the decision when the matter finally makes it into court later.


If you are having difficulty coming to an agreement with your ex over what is in your children's best interest, then it really is time for you to get in touch with a lawyer who can give you some advice based on the specifics of your situation.  It is possible that lawyer can contact your ex's lawyer and they can work something out.  Perhaps they can agree on a mechanism such as parenting coordination or arbitration to work things out.  At the very least, they will be able to give you some objective advice about what is in your children's best interest and what you should be doing.  Don't get into a fight in front of your children and cause them even more stress and anxiety over this difficult time.  Got in touch with professionals to help you figure out that what is best for your children in light of your parenting situation and the extraordinary times in which we are currently living.

Guide to the Basics of Ontario Family Law - 4th edition cover


To get the best advice, specific to your situation, you should speak to family lawyer.  Certified Specialist in Family Law, John Schuman, is known for his concern for children in separation and divorce and has won many child custody cases.  To contact John call 416-446-5807, email him, or fill out the form below. You can use the same form to comment on this page.

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You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of the Family Law related to parenting after separation, child support, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback.

   

Many thousands of people get family law assistance from this website everyday.  If you have found this page useful, please share it on your social network using the Facebook, Twitter, LinkedIn and Pinterest buttons at the bottom of the page.  Please comment on this page using the comments section at the bottom to share your thoughts on the best ways to resolve matters for your children after a separation. 

 

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How To Resolve Your Disagreements Over Parenting, Separation and Divorce While the Courts Are Closed Due to the Corona Virus

FAMILY LAW COVID19 RESOURCE CENTRE


Empty Courtroom as Courthouses are closed


Corona Virus has had a devastating impact around the world.  Governments have taken action in response.  One of those actions is to close the Ontario Courts and only allow access to litigants in the most desperate of situations.  Separation and divorce can also present difficult circumstances for parents and spouses.   With the closing of the Courts, those separated parents and spouse have lost a way to resolve disagreements at a time when stress and anxiety can provoke more disagreement.  There has been an increase in divorce applications in China since the start of the pandemic.  The prospect of having to wait a long time to resolve Family Law issues creates a lot of anxiety for separated parents and spouses, who find the time of transition difficult and want to get it over.  The good news is that there are ways to find solutions for parents and children, even at this difficulty time.

 

Corona Virus

COVID-19 has closed the Ontario Family Courts – the place where divorcing spouses traditionally went to work out the issues arising from their separation.   For the most part, courts continue to hear matters in open courtrooms where the virus can spread.  The system lacks the ability to hear matters electronically - over the phone or by video over the internet. So, coming to court has become a dangerous way to resolve things like parenting disputes, child support, spousal support, or property division because of the risk of transmission of the virus.


As troubling as that may seem, there has been a big push in Family Law to move away from dealing with everything, even most things in court.  In fact, the upcoming changes to the Divorce Act in July will put a large emphasis on resolving things out of court.  So, the Corona Virus may just be pushing us into the future a little faster than people had planned or anticipated.

 

There are several ways to resolve Family Law issues – all the things arising from separation – without going to court.  In fact the vast majority of separating couple and parents resolve their matters without ever stepping foot inside a courthouse.  Believe it or not, most family law cases are resolved with the parties signing a separation agreement without going to court.   There are some requirements to have a legal and enforceable separation agreement, but none of those requirements involving going to court.   In fact, lawyers for you and your ex and exchange the required information and negotiate the terms without stepping a foot out of their offices – maintaining the social distancing required by the pandemic response.

 



So, even during the pandemic, you and your ex can move your matters forward toward a resolution.

Ontario Family Law Podcast

 

15 - Family Court Step by Step - Part 2 - From First Appearance to the last appearance before trial

24 - How to Have a Valid and Enforceable Separation Agreement

31 - How Lawyers Help at Family Mediation

35 - Resolving Children's Issues Outside of Court

41 - How to Prepare for Family Mediation

Obviously, some disagreements are harder to resolve.   That was why people USED to go to court, but for a while they have rarely had to do so.  Alternative Dispute Resolution – set procedures that are alternatives to court for resolving disputes – have been growing, particularly in Family Law.  At my firm, we are trained in and use all the ADR options.  And, in the face of the pandemic, we can use them to get matters finished for clients without waiting for the courts to open.

 

Many separating couple and parents have found mediation to be an effective way to resolve arguments.   In mediation, the trained mediator helps the parties find ways to resolve their disagreements.  This is very similar to what judges do at case conferences and settlement conferences, although since mediators charge for their time, they often spend a lot more of it getting parties through to a settlement.


Although traditionally mediations have been conducted in a boardroom, they can be conducted over a phone or through video-conferencing.  Electronic mediation has become increasing prevalent in places like Northern Ontario where the parties are far a part.   Although, it can work fine in many other situations, even in cases of “self-isolation” because the Corona Virus cannot be transmitted over the internet.   John Schuman has gotten parties to reach settlement at electronic mediation – there are even situations where it is easier than in-person mediation.  At a recent conference, John spoke about how to use electronic mediation effectively.

 

For more about the process at mediation, check out this video:



 

Collaborative Practice is usually involves a series of meetings.  Although, truthfully, the team also do a lot of work between meetings over the phone.  Again, there is no reason why Collaborative Practice could not help separated spouses from coming up with their own solutions over video conferencing to avoid the transmission of viruses.

  

 

But, what if separated spouses or parents just cannot agree?   What if they need a judge to make the decision for them?   It is possible that they still do not need a judge or the formal, lengthy and more complicated court process.  What they need is an impartial trained decision maker to listen to both sides, consider the arguments and make the decision.   That can also happen in Family Arbitration.  In fact, many separating spouse like Family Arbitration better than court because they can pick an arbitrator they respect and trust instead of having a judge assigned to their family by chance.


Since there are no set legally required procedures in Family Arbitration – the process just has to be fair to both sides – there is no reason why the process cannot be conducted over the phone, or by video conference, or even in writing by email.  In fact, many arbitrations are done just that way.  All of those options allow both sides to present their arguments and allow the arbitrator to make a decision.


Additionally, section 58.9 of the Family Law Act says that an arbitrators decision can be enforced by the Superior Court just like a Court Order.   So, if you need to go to Court before they reopen, you may want to convince your ex to go to Family Arbitration now instead of waiting.

 

Parents who are having difficulty with their current parenting plan or parenting order may want to consider hiring a parenting coordinator to help them resolve the issues.  Follow the above link or click on the podcast episode to the left for a podcast with more information about parenting coordination.


And check out this video with more information on all the alternatives for going to court:

 


If you would like to resolve your family law matter NOW, instead of waiting for the Ontario Courts to reopen, either John Schuman or one of his colleagues cannot not only help you as a lawyer, or collaborative lawyer, but as a mediator or arbitrator as well.   Call Kerri-Anne Mitchell at 416-446-5847  or email her to discuss your ADR options and to set it up.  It is best not to speak to a mediator or arbitrator alone to prevent the appearance of bias.

Guide to the Basics of Ontario Family Law - 4th edition cover
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New Kobo Logo

Paperback available from:

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The best way to protect yourself, your children, and your financial security, is to find out how the law applies specifically to your situation and what steps you should take to get things to work out for you. Certified Specialist in Family Law (and author of the book to the left), John Schuman, has extensive experience assisting high net worth clients on complicated legal matters, including stock options.  Contact him right now by using the contact form below, by emailing him, calling 416-446-5847, or using the contact form below.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).


You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of child support, spousal support, property division, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback.  


Many thousands of people get family law assistance from this website everyday.  If you have found this page useful, please share it on your social network using the Facebook, Twitter, LinkedIn and Pinterest buttons at the bottom of the page.  Please comment on this page using the comments section at the bottom to share your thoughts.


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Do I still have to let my kids travel with my ex for March Break amid COVID-19?

epidemic-4888838_1920


By Katelyn Bell, Family Lawyer

We are all very familiar with the pandemic currently spread across the world. Yesterday, the Ontario Government announced the closure of all publicly funded schools for two weeks following March Break, which is set to commence this Monday, March 16th.

 

March Break tends to be one of the busiest travel seasons… but not so much this year.

 

While most of us with travel plans have made the decision to cancel or reschedule, others are taking advantage of the cheap cost of travel and have decided to take the risk and travel anyway. 

 

So what happens if your ex-partner is insisting upon taking your children away for March Break during his or her parenting-time with the kids? Do they have to go? Do you have to sign the travel consent form as required by many international laws and custom officials?

 

The short answer: no.

 

But you should be aware that if you do refuse to sign a travel consent for your children to go on vacation with your ex, he or she may bring forward a Family Court motion, seeking to dispense with your consent to travel. 

Ontario Family Law Podcast

 

7 - Custody of the Children - what it means and how it is decided

15 - Family Court Step by Step - Part 2 - From First Appearance to the last appearance before trial

35 - Resolving Children's Issues Outside of Court

When a parent is unreasonably withholding consent for a child to travel, the travelling party tends to be successful on this type of a motion, so long as the proposed travel is in the child’s best interests.  When parents ask judges to make, or resolve arguments over, parenting decisions, the judge is required to make the Order that is the child’s best interests.

 

But, amid COVID-19, it will be very difficult for a Family Court Judge to find such travel is in a child’s best interests. This is particularly true for as long as the Government of Canada advises everyone to avoid all travel outside Canada.

 

Not only does a child risk being quarantined in the foreign jurisdiction amid increasing coronavirus concerns and border shutdowns, but of course, there is the risk of your child actually contracting the virus.

 

And even if your child isn’t quarantined while away or ill, it is highly probable that child will be quarantined upon their return to Canada. This would mean you – the non-travelling parent and presumed healthy one – wouldn’t be able to see your child for the entire quarantine period.  On top of that, there is a chance that the “self-isolation period” for your child could extend past the school shutdown ordered by the Ontario Government.   For children who need additional assistance in school (exceptional pupils),  a prolonged absence from school could have negative impact on their education  That is something that a judge will take into consideration if asked to decide whether to allow a trip.  It is always important to make sure you have evidence to present to the judge about what is your child’s best interests whenever you go to Family Court.

 


All those considerations suggest that travel outside Canada is currently not in a child’s best interests (even though it in normal circumstances, most judge support children traveling). So say no to travel… for now.


Of course, where there is an existing court order, both parents have to follow it, unless they agree otherwise, or a judge changes the order.  So, if a parent insists on travelling during the Corona Virus Outbreak, or doing anything else that is against the children’s best interests, it maybe necessary to go get an emergency parenting order


These special considerations do not just apply to travel.  Co-parenting during the pandemic can be challenging.  Public Health Ontario is providing reliable advice about what is in everyone’s best interests.  Parents should be following that advice to do what is in their children’s best interests.  In the event of a dispute, it is quite certain that a Family Court Judge will. 

 

Guide to the Basics of Ontario Family Law - 4th edition cover
Find the book on the IBookstore

You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of the Family Law related to parenting after separation, child support, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback.

  

Get the paperback on Amazon

However, if protecting the well-being of your children should always be your top priority.  To get the best advice, specific to your situation, you should speak to family lawyer.  You can email the author of this post, Katelyn Bell.  Certified Specialist in Family Law, John Schuman, is known for his concern for children in separation and divorce and has won many child custody cases.  To contact John or Katelyn, call 416-446-5847, email him, or fill out the form below. You can use the same form to comment on this page.

 

Many thousands of people get family law assistance from this website everyday.  If you have found this page useful, please share it on your social network using the Facebook, Twitter, LinkedIn and Pinterest buttons at the bottom of the page.  Please comment on this page using the comments section at the bottom to share your thoughts on the best ways to resolve matters for your children after a separation. 

 

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Who Pays the Costs of Going to Family Court?

lawyers fighting in family court

One of the things people worry most about when separating is the cost of getting divorced. The cost of going to Family Court can be very high.  Separating spouses want to know which spouse will pay the legal and other fees. 

When people mention "court costs", they are speaking about two types of things:

  1. The costs for filing documents with the Court or other fees that someone has to pay directly to the court to have the court proceed with a specific step.
  2. The fees charged by lawyers, accountants, process servers, and other professionals in relation to the litigation.

Not surprisingly, the fees charged by professionals are usually much more than the fees charged the courts.  Ontarians almost completely pay for the Family Courts system through their taxes.  The changes to the Divorce Act effective July 1, 2020 recognize that avoiding court, and the associated fees, can also significantly reduce the professionals fees. So, parties should consider using mediation, arbitration, Collaborative Practice or the Ontario Government's Child Support Online Recalculation Service, where appropriate.  


When parties stay in court, it is important for them to understand who will pay the associated costs and why.


COURT FEES

Most court fees are associated with either getting a divorce or asking the court to assist with property division.  Either the Superior Court of Justice or the Superior Court of Justice - Family Court deals with those matters depending on in which municipality the court proceedings take place.  There are fees for:

  • filing an application asking for a divorce or asking for an order respecting property, 
  • filing an Answer to those demands (listen to this podcast for an explanation of the steps in a Family Court case), 
  • scheduling a trial or getting a Divorce Order), 
  • getting a summons for a witness, 
  • getting a Divorce Certificate (which is necessary to remarry), and 
  • making photocopies of court documents. 
Ontario Family Law Podcast

10 - Child Support - Who Pays and How Much?

All the Family Court fees are listed on this page.  They range from $31.00 to several hundred dollars. (People also have to pay for transcripts of court proceedings, but those fees, which can be many thousands of dollars, are owed to the court reporters, not the court).

There are no court fees for court proceedings in the Ontario Court of Justice or for cases in relation to only child support, spousal support or parenting.

13 - Spousal Support in Ontario and Canada

14 - Family Court Step by Step - Part 1 - Starting and Responding to Family Court Proceedings

40 - How to Keep Your Money in Separation and Divorce

With respect to the payment of the actual Court Fees, the party who takes the steps pays the fees. This means, for example, that a spouse who files his or her answer to his or her spouse’s claims pays the cost of filing that document with the court.

While Court Fees can amount to several thousand dollars, they are not usually the fees that people talk about when they talk about the cost of Family Court.  Most of the costs of going to Family Court are associated with professional fees, especially the costs of lawyers and, where necessary, accountants.


PROFESSIONAL FEES

Initially, parties pay their own professional fees associated with Family Court litigation.  Where a party qualifies for Legal Aid, he or she may not have to cover the costs of legal fees associated with parenting or support matters.   Legal Aid Ontario does not assist with legal fees related to obtaining a Divorce Order or property matters (essentially the same matters for which the Superior Court charges fees).  Legal Aid Ontario is also not supposed to pay the fees associated with a person taking an unreasonable position.   Also, to get Legal Aid, a person must have very little income - such little income that the person is living in poverty.


Since legal fees can be a significant portion of the costs of getting divorced or dealing with another matter in Family Court, it is helpful to do things to keep those fees low.   Watch the video above tips on how to keep Family Lawyer's Fees down.  

Note that hiring a lawyer with a lower hourly rate will not necessarily save you money - you need a lawyer who is competent to handle the issues in your case and more complex or difficult cases require more senior lawyers with higher hourly rates to get the result you want.  Many people find that when they pay less for a lawyer, they end up paying far more than they saved due to a bad settlement or court order.  It can be useful to at least consult with a senior family lawyer to know where you should end up and how to get there.   

It can be also helpful to consider hiring a good lawyer either for unbundled services or as a Family Law Coach, which can give a party more control over fees by taking more responsibility for handling the litigation.

Check out this page with more information on Family Lawyer's Fees.

However, the question of "who pays for Family Court" does not end there.   Ontario has a "loser pays" Court System.  That means that the unsuccessful party in Court pays some or all of the lawyer, accountant and other professional fees of the winning party.  So, while each party may have to pay those fees as they go along, at the end of a trial, motion, or appeal, the judge may order that the "losing party" reimburse the winning party for some of those fees.

On a quick side note, it is possible to have one separated spouse pay the other separated spouses legal fees in advance.  Judges do that when one spouse has all the money and is holding on to it and the other spouse needs access to some funds to protect his or her rights in court.

In Family Court, judges do not just assess who "won", as that can sometimes be difficult to determine.  They also look at which party behaved more reasonably, whether a party has acted in bad faith, and, most importantly, formal offers to settle. 

Rule 18(14) of the Family Law Rules states that when a party gets a result that was as good or better for them as a previous formal offer that party has properly made, the other party should pay all or substantially all of the legal fees.  Put more simply, a party who "beats" an offer to settle in Court can expect the other party to pay the legal fees for both sides, including reimbursing any fees already incurred.

The idea behind this is simple:  if one spouse had accepted the other spouse’s good offer, he or she would not only have come out better, but saved both spouses the time, aggravation and costs of continuing in Family Court.

It is very important for anyone involved in Family Court to make an offer that he or she can beat as early on as possible. That way, the answer to the question "who pay the costs of Family Court" will be “the other side”.   A former spouse may end up paying all of the professional fees associated with the Family Court process  - even when those legal fees are hundreds of thousands of dollars.  

It remains important to act reasonably.  A party who acts in bad faith always pays the other side's legal and other fees, regardless of the outcome.  It is very important to get good legal advice to take reasonable positions before the Court and make good offers to settle, to get reimbursement for legal fees. Having to pay the legal fees of both sides can bankrupt, or at least cause serious financial harm, to the person who has to pay them.


There is on caveat.  Legal fees related to support can be enforced by the Family Responsibility Office and survive bankruptcy.   Other fees can be very difficult, or impossible, to collect if the other side has no money, even if the other side lost.  For those cases, in considering steps in Family Court, it is especially important to consider their cost when the other side will never be able to reimburse those costs.  It may be best to try to settle as the professional fees will be more than any benefit of fighting it out in Court.


Who Pays When The Spouses Stay Out of Court

As noted above, separated spouses and parents can save a LOT of money by staying out of court.  So, who pays then?

Most couples negotiate a separation agreement with the help of lawyers and then have the lawyers write up the agreement.  When that happens, each side usually pays his or her own legal fees unless they negotiate something different.  In these cases where parties reach a fair agreement, each spouse usually ends up with enough money to pay the legal fees without getting into financial trouble.


When the parties go to mediation, most often each side pays for his or her own lawyer and half the cost of the mediator.   This gives both sides some commitment to resolve their matters at mediation - at a much lower cost than in court.  Although, where the parties both view mediation as worthwhile, but one spouse doesn’t have the funds available,  they can share the cost of the mediator differently.


Most arbitrators expect each side to pay an equal amount towards the arbitrators fees, unless they have agreed to special arrangements.  Most arbitrators adopt the costs rules that are in the Family Law Rules, or ones that are very similar.  So, at arbitration, offers to settle are very important and the “loser pays.”   In arbitration, it is common for the arbitrator to order that the unsuccessful party pay the arbitration fees, including reimbursing the other party for fees already paid. 

It remains important to act reasonably, listen to a lawyer, and make good offers to keep the cost of any separation, divorce or other Family Law matter low.

Parties cannot be divorced except by a Court Order.  A divorce is only necessary to allow the spouse to remarry. So, even after settling everything outside court, someone has to pay the court fees to get the divorce.  Spouses often include who will pay for the divorce in their settlement. 

Guide to the Basics of Ontario Family Law - 4th edition cover
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new kindle logo
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Paperback available from:

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The best way to protect yourself, your children, and your financial security, is to find out how the law applies specifically to your situation and what steps you should take to get things to work out for you. Certified Specialist in Family Law (and author of the book to the left), John Schuman, has extensive experience assisting high net worth clients on complicated legal matters, including stock options.  Contact him right now by using the contact form below, by emailing him, calling 416-446-5847, or using the contact form below.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).

You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of child support, spousal support, property division, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback.  

Many thousands of people get family law assistance from this website everyday.  If you have found this page useful, please share it on your social network using the Facebook, Twitter, LinkedIn and Pinterest buttons at the bottom of the page.  Please comment on this page using the comments section at the bottom to share your thoughts.


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Was It Illegal For My High School Chaplain To Take Me To Therapy Without Telling My Parents?


teenager in therapy


This question touches on a lot of rights of adolescents under Ontario's Health and Education Laws.  It might also seem to related to Family Law.  Mostly, it is a questions of children’s rights. 


Health Care and Consent Laws

To start, in almost every situation, teenagers have the right to go to therapy without parental consent.  The work of both psychologists and psychotherapists is covered by Ontario's Health Care Consent Act, 1996 (because those are both self governing health professions).  

Under section 4 of the Health Care Consent Act, every person is presumed to be able to understand the information relevant to treatment and the consequences for making a treatment decision.   There are no age limits on what "person" means, so everyone is entitled to make their own health care decisions (including therapy decisions.)  The only exception to this is where the health care professional has reasonable ground to believe that the person does not have that understanding.   A young child, or a person with a serious mental illness or a developmental delay may not be able to have that understanding.  But, unless the health care professional believes there is a problem, any person, including a child, can consent to treatment, including psychotherapy.   Most teenagers can have the necessary understanding of what therapy involves, and what any risks of therapy might be, to be able to consent to it on their own.

It is also important to note that section 15 of the Health Care Consent Act, 1996 recognizes that a person (including a child) can have the required understanding to consent to one type of treatment even if he or she cannot understand others.

The impact of the Act is that a child can direct the treatment he or she understands, even when there are treatments the child does not understand.   Check out this page for more about children directing their own health care.   

Note that leading institutions, such as the Hospital for Sick Children ("SickKids") are very careful to respect the rights of children to direct, or participate in directing, their treatment.  Additionally, some practice areas, such as Adolescent Medicine Specialists, usually assist older children without the involvement of their parents.  So, a child getting therapy without a parents permission is not "against the law."

The Code of Ethics for Canadian Psychologists is consistent with Ontario Law.  It does caution psychologists to be careful around vulnerable groups and people who may not have capacity (such as children), especially when there are multiple people involved in the therapy or aspects of it.  But, that is not the case here.  

The Professional Standards of Practice for Registered Psychotherapists in Ontario specifically reference the Health Care Consent Act, 1996 and adopt its principals. So, the therapist did not do anything wrong either.


Family Law

Ontario Family Law Podcast

7 - Custody of the Children - what it means and how it is decided

18 - How to Hear the Voice of the Child in Custody/Access Cases

22 - Children's Right's in Ontario Schools

Family Law does not apply to the school chaplain because he or she is not acting as a parent, at least not on a continuous basis.  Family Law does not give parents the right to interfere with their children’s  therapy either.  Ontario's Children's Law Reform Act addresses custody rights when parents are separated. Section 18(2) of that law says the custody provisions apply to children up to the age of 18. The term custody, which will soon no longer exist under Canadian Law, includes the right to make medical decisions.  However, that law does not supersede the rights of the child under the Health Care Consent Act, 1996. Family Law applicable to separated parents has no applications when parents are not separated.  

Children’s Aid Societies sometimes get involved if a child is not getting necessary treatment, but rarely start intervention into a family over what therapy a child should be receiving.   Section 74(2) of the Child Youth and Family Services Act allow Children's Aid Societies to intervene when a child is not receiving treatment to prevent the child from suffering harm.  That section explicitly states that the Society is not able to intervene when a child has capacity to make treatment decisions under the Health Care Consent Act.  Although, there have been court cases where the Children's Aid Society has challenged whether the child has capacity.

Guide to the Basics of Ontario Family Law - 4th edition cover

You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of child custody, parenting laws, the law related to children’s aid societies moving and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback


Education Law 

The Chaplain is not a member of any recognized self-governing profession and is either an employee of volunteer with the school board or school.  Things are little greyer there.  Since you agreed to go with the Chaplain, the school was not kidnapping you or otherwise committing a criminal offence, but it is not clear that taking you out of school is permitted by the Education Act

If the Chaplain was a teacher, or a teacher (including a principal or vice-principal) was involved in these activities, then there may be an issue of a breach of the Ontario College of Teacher’s Ethical Standards.  The duties of teachers of fairness, openness and honesty involve maintaining the trust of parents.  A teacher who did not consider those duties may be the subject of professional discipline.  

Under section 21 of the Education Act, every person between the age of 6 and 18 is required to go to school on every school day.  Under section 21(5) of the Education Act, it is the duty of parents to make sure their children do attend school.  The Education Act does provide some excuses for not attending school, one of which is because the student is "unable to attend school by reason of sickness or other unavoidable cause."   Your circumstances may or may not have met that criteria.  But, the duty of parents to make sure their children attend school probably gives them some right to have a say in whether one child  can "skip school” for any reason, including for therapy.  That neither you nor the school told them about the therapy at all might be a problem. 

Depending on which School Board is involved, there may be School Board Polices or insurance requirements that prevent a school employee or volunteer from transporting a student for a non-school related matter.  That could get any school employee or volunteer into trouble with the Board for transporting a student without proper authorization.  There might have been bigger trouble if there had been a car accident and the insurance company was able to deny coverage.   However, those would have been internal School Board issues and not necessarily legal ones involving students - unless the Board decided to fire the Chaplain. 

Under Health Law, Family Law and Education Law, your Chaplain did not do anything that was clearly illegal.  And, it may have been the right thing to do for you.  Still, it might have been better for the school to follow the legal process for helping exceptional pupils to get you the help you needed. Hiding things from parents can lead to bigger problems down the road, but that might have been something that the therapist helped with.

Children’s Rights Lawyer, John Schuman, and his colleagues have extensive experience in assisting children and parents with Education Law and Family Law issues.  We can provide legal representation or we can just provide information and advice about the process or along the way at each step.   Call us at 416-446-5847, email us, or use the contact form below to set up a consultation to set up a plan to meet your child’s needs and your budget.

Thousands of people find this website helpful everyday. If you found this page helpful, please share it on your social networks using the buttons at the bottom of the page.  That makes it easier for others to find this information.  You can also leave your comments below.

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Do Ontario Schools Have to Teach Teenage Parents?

teenage parents


Ontario’s publicly funded education system has been set up to provide additional assistance for children who face challenges or barriers to their ability to receive an education.   That assistance is mandated by the Education Act, several regulations, several Ministry Policies, and Policy/Procedure Memorandum, which are binding on school boards.


Ontario Private Schools are almost completely unregulated, so there is little explicit help for students in special circumstances.


However, neither pregnancy nor parenthood are, in themselves, identified grounds for a student to access Ontario’s special education resources.  The Ministry of Education has a program called the “Single Parent Initiative”, but it only encourages Boards to be mindful of parent/students and leaves the actual implementation to the individual school boards.  Unlike other areas of disadvantage, there are no specific systems in place to assist teenage parents in school. 


The following are the (antiquated) available identifications that formally entitle children to additional special education resources through the Identification Placement and Review Committee (IPRC) process:

Categories of Exceptionalities for Ontario Students:

  • Behaviour: Behaviour disability, mental health affecting behaviour (good or bad), socialization issues, anxiety disorders, PTSD, depression, suicidal ideation, etc.
  • Communication: Autism, Deaf and Hard of Hearing, Speech Impairment, Language Impairment, Learning Disabilities
  • Intellectual: Gifted, Mild Intellectual Disability, Developmental Disability
  • Physical: Physical Disability, Blind and Low Vision
  • Multiple: Multiple Exceptionalities (2 or more prominent)

None of these apply directly to teen parenthood.  However, becoming a parent while a teenager is not normative behaviour and it usually occurs in a context of other challenges.  The education system may already be attempting to address those issues that contributed to the circumstances or the pregnancy may lead to more active intervention.  However, the special education system does not specifically recognize, or fund, assistance for teenage parents. Obviously, single parenthood can affect mental health, which would entitle a student to some form of special educations assistance, although that would be for the mental health issue, not for the parenthood issue.

Bullying is another challenge faced by teenager parents.  Ontario’s Education Act and initiatives by the Ministry of Education are designed to combat bullying.   Section 1(1) of the Education Act sets out that bullying is behaviour that occurs in a context where there is a real or perceived powers imbalance between the victim and the bully and identifies “family circumstances” as a factor that can create that imbalance.   Section 170(7.2) requires the Board to provide programs interventions or other supports for students who have been bullied.   Again, there are requirements that the Board accommodate many of the concerns that arise from teenage parenthood, but there are no specific requirements for the Board to accommodate the teenage pregnancy or parenthood.


In the absence of the specific requirement for accommodations in the education system, a parent/student may have to access the Human Rights Tribunal of Ontario if a school refuses to provide some assistance.   The relevant claim of discrimination in this context is discrimination on the basis of “Family Status”.   Discrimination on the basis of Family Status occurs when a parent/child relationship cause a person to be negatively impacted. 

 

Not every treatment of a single parent will be discriminatory and give rise to relief before the Human Rights Tribunal.   The test for whether a parent has been discriminated against is set out in the HRTO decision in Misetich v Value Village Stores Inc. 2016 HRTO 1229 at para 54-57:

  1. To establish that the student (the Misetich case actually related to an employee) has suffered discriminatory treatment, the student must establish not just a negative impact on a family need, but an impact that results in a real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship.  Assessing the impact of the impugned rule is done contextually and considers the other supports available to the applicant such as before/after school daycare, family support etc.
  2. Once the applicant proves discrimination, the onus shifts to the respondent to establish that the applicant cannot be accommodated to the point of undue hardship. At this point, whether the applicant cooperated in the accommodation process is considered. The applicant is obligated to provide the respondent with sufficient information regarding their family-related needs and work with the respondent to identify possible solutions to resolve the conflict. In school related HRTO matters, this last requirement is where many students and parent falter when they are not cooperative with the school board.

There are no HRTO cases related allegations against a school board for discrimination based on Family Status.  There is a case involving a college student: Ananda v. Humber College, 2017 HRTO 611.  However, in that case, the student failed to establish that, even though he was his mother’s primary caregiver, her needs were of a sufficient extent to require the accommodation he was seeking (permission to take more than 6 years to finish his nursing program).


However, the Ontario Human Rights Commission has specifically considered the special concerns of parents enrolled in educational programs.  The commission has given directions about the importance of accommodating parents in their educational programs in its policy on breastfeeding.   Challenges faced by teenage parents are the legitimate subject of a human rights case where students suffer actual disadvantage related to being a parent and attempts to work out the problems with the school to create appropriate accommodations have failed. 

 

The HRTO has broad jurisdiction to grant relief that exceeds just monetary awards.  It can make mandatory orders that require School Boards to do, or not to do, specific things.  So, it can require a School Board to provide specific accommodations to a child.   However, the monetary awards, while not capped, tend to be lower than in court.   In addition, the HRTO’s Rules of Procedure do not give it the power to award costs.  So, parents who use lawyers to navigate the HRTO’s process or to assist them at the hearing, which is like a trial, may have difficulty coming out ahead financially and may have difficulty getting help navigating the process.   Still the Human Rights Tribunal process is simpler and less costly than Court.


HRTO has a Child and Youth Division (CYD) for cases involving children.   Cases related to alleged discrimination experienced by children are diverted to adjudicators and mediators who have special expertise in children’s issues. Since most cases of discrimination against children somehow involve schools, because school is the institution with which children most frequently interact, CYD sees a lot of cases involving children with special needs and their schools.  For these cases HRTO often draws on adjudicators from the CFSRB and OSET, so they understand the school system well. 


In addition, the CYD adjudicators are prone to decide that any case involving discrimination affecting a child needs to be resolved quickly for the same reasons that court cases centred around children should be resolved quickly:  time passes slower for children and having a negative experience drag on can negatively impact a child’s development.   The HRTO does have an expedited process.


When going to the HRTO in relation to a child with special needs, it is important to immediately apply for the expedited process both to make sure the process goes quickly and to ensure that the case is assigned to the CYD.


While there is ability to bring interim motions for both procedural issues and “Interim Remedies” (temporary order that last until the full hearing takes place), the usual first step is a mediation.  Those mediations can happen really quickly, possibly within a month of bringing the application, for CYD cases. As the CYD mediators are familiar with the school system, they can be quite helpful in resolving issues and “building bridges” between the family and the educators to try to prevent hard feelings from preventing the implementation of any solutions and to assist a positive learning environment.  In addition, if the claim has any merit, school boards can be very motivated at mediation because they do not want to be the subject of a HRTO decision stating that they maltreated a child with special needs.


Keep in mind that being a child with special needs  does not guarantee success at the HRTO.  The following is the test at the HRTO:

  1. Has the applicant established that he was denied meaningful access to his education because of a prohibited ground of discrimination?
  2. If so, has the School Board established that the reason the student was denied meaningful access to education was because he or she was unable to fulfill the requirements necessary to do so because of his or her disability or that the requirement that prevented his meaningful access to education was reasonable and bona fide?
  3. If so, has the School Board established that it was unable to accommodate the applicant?

 

See: Kahn v. Upper Grand District School Board, 2019 HRTO 1137 (CanLII) (http://canlii.ca/t/j1w8w )

Ontario Family Law Podcast


7 - Custody of the Children - what it means and how it is decided

10 - Child Support - Who Pays and How Much?

In addition to challenges with the education system, and perhaps education law matters, teenage parents often face many family law issues, such as child support and parenting rights and responsibilities (formerly child custody) cases.  There are lots of more information on this site about Family Law issues, including the Ontario Family Law Podcast, several videos and many answers and tips for Family Law problems in the Question and Answer Blog

Guide to the Basics of Ontario Family Law - 4th edition cover


You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of child custody, moving with the children, child support, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback. 

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But, it is always best to discuss your situation with a top family law lawyer to get advice that is specific to your situation.  Certified Specialist in Family Law, John Schuman, is known for his concern for children in separation and divorce and has won many child custody cases.  To contact John, call 416-446-5847, email him , or fill out the form below. (Please note we cannot provide legal; advice by email.) You can use the same form to comment on this page.


Many thousands of people get family law assistance from this website everyday.  If you have found this page useful, please share it on your social network using the Facebook, Twitter, LinkedIn and Pinterest buttons at the bottom of the page.  Please comment on this page using the comments section at the bottom to share your thoughts on the best ways to resolve matters after a separation. 


Our Separation Agreement is About To Expire, Does My Ex Still Have To Pay Child Support Until Our Child Turns 18?

child-support-torontoChild support is the right of the child.  Parents generally cannot deprive a child of his or her right to child support.  Further, a child's right to child support can go past the child's eighteenth birthday.   So, just because a separation agreement or child support agreement ends, the obligation to pay child support does not. Even if parents agree that child support will end on a certain date, that does not mean that child support will end.  

Ontario Family Law Podcast


10 - Child Support - Who Pays and How Much?

24 - How to Have a Valid and Enforceable Separation Agreement

40 - How to Keep Your Money in Separation and Divorce

Section 33(12) of Ontario's Family Law Act says that if a parent brings the issue of child support before the Court for a child under the age of 18, the court will only make an Order that is different from the Child Support Guideline Tables  if the child support arrangements benefit the child as much, or more than, the amount payable under those tables.  Any agreement that suggested child support should end before a child turns 18 or becomes 17 years old would clearly violate that provision.


One of the biggest mistakes people make after separation or divorce is not paying child support because not paying support really upsets judges.  So, for as long as a child is entitled to support, the paying parent should just pay it, whether there is an agreement or not.  Of course, the payor parent should make the payments in such a way that there is a record of having made them (no cash!) so that the other parent cannot go back and ask for the same child support again.


For more information about how child support works, watch the child support video below, or listen to this episode of the award winning Ontario Family Law Podcast.


Guide to the Basics of Ontario Family Law - 4th edition cover


You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of child support, spousal support, property division, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback.  But to understand how the law works precisely in your situation, it is always best to speak to a good Family Law Lawyer.

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To make sure child support is right in your case, speak to a top family law lawyer about your rights and options. Child support is the right of the child.  Contact Certified Specialist in Family Law (and author of the book above), John Schuman, by emailing him, calling 416-446-5847, or using the contact form below.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).


Many thousands of people get family law assistance from this website everyday.  If you have found this page useful, please share it on your social network using the Facebook, Twitter, LinkedIn and Pinterest buttons at the bottom of the page.  Please comment on this page using the comments section at the bottom to share your thoughts on the child support issues after separation and how to best to protect the children.



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