Family Law Blog

How do you get a Court Order for Emergency Child Custody in Ontario Family Court?

Arguing a custody motion in family courtThe first question you have to ask is whether you need an emergency temporary custody order.  Judges do not like making custody orders, especially on incomplete evidence and on rushed basis unless the order is necessary to protect the health and welfare of the child.  If the order is not necessary to do that, then the judge will want you to have a case conference first.  Of course, that is if you really need to b in court.  There are alternatives to court that are often better able to address children's issues than court, unless there are issues of abuse, mental health, substance abuse or a very difficult parent.  You can learn more about the alternatives to court in this podcast or on this webpage, or this video.

If you do have to go to court, there a large number of things you must do, and correctly.  Your best chance to get this right, and avoid having a judge refuse your request, is to get a good family lawyer to help you. (For more reasons why you should hire a family lawyer, see this webpage.  If you cannot hire a lawyer, you should get a copy of this book on the basics of Ontario Family Law in paperback or by immediate download as a $9.99 Kindle eBook, Kobo eBook or iBook for your iPad or iPhone.  It describes the Family Court Process and custody access issue, to help you.  However, if that is not possible, here is the information about how to get the Order:

1.  First you should under stand the legal meaning of the term “custody."  It may be different then you think.  Listen to this podcast and read this webpage.


2.  You need to start a full blown court proceeding to get any-type of Order.   To understand how to start a court proceeding, listen to this podcast.  There is a video on family court proceedings below


3.   You must file a Form 8 Application General that sets out all the orders you want the court to make and the facts that give the court the legal authority to make those orders.  There are certain facts that are important when judges decide any parenting issue, including custody, and many facts that judges do not care about.  It is important to put the right facts in your Application, and in your affidavits, so listen to this podcast and read this webpage.  They both explain how judges decide who gets custody.


4.  Since you are claiming custody, you must also complete, and swear or affirm before a commissioner of oaths (these are in law offices and at the court), a Form 35.1 Affidavit which sets out several facts that judges want to know regarding parenting. 


5.  If you are asking for any form of support you must also complete a Form 13 Financial statement (again this has to be sworn or affirmed).  If you are asking for support and making property claims, you have to fill out a form 13.1 Financial Statement. (Note that only the Superior Court of Justice has jurisdiction to deal with property claims.)  Your financial statement must attach 3 years of Notices of Assessment from the Canada Revenue Agency.  If you do not have them, you must get them through the CRA’s website: http://www.cra-arc.gc.ca/myaccount/.


6.  You have to take all of the above documents to the court to have them "issued."  The court will not allow you to issue the documents if there are errors or they are incomplete.


7.  You must create a continuing record volume for the court.  For information about doing that, see this link: http://www.ontariocourtforms.on.ca/forms/family/continuing_record/frcr-flr/Formal_Requirements_EN_Nov1406_ODA.pdf.


8.  At the time that you are issuing your Application, you should ask the court for when you can have a case conference.  You should book the first date.  The court will give you a Conference Notice, that you must add to all the other documents.


9.  After issuing the documents, you must have someone, other than you, serve the documents  on your spouse and anyone else who can claim to have been an active parent of the child.  Service usually means identifying the person being served and a handing them the documents to be served. The person must complete a affidavit of service, attesting that he or she served the documents  properly (another commissioned document).  Then you must file the documents with the court.


10.  After all of that, you must bring a motion for temporary custody.  Unless there is a compelling reason why the other parent(s) should not be served with your motion material (because they woudl do something bad to the child before the court had an opportunity to hear the motion) you must give them at least 4 business days notice.  To get a court date, you have to go to the family court service counter and ask what dates the court has available to hear your motion.


11.  You must first complete a Form 14 Notice of Motion that sets out the precise order you are asking the court to make.


12.  You must also write, and swear, a Form 14A affidavit that sets out your version of the facts. (Refer to the podcast and website listed above to know what facts are important.)   As you have to swear or affirm that the document is true, it is very important that the facts be accurate.  It is also important that the the affidavit is written in a way that is clear and compelling to a judge.  To hear about what judges consider good parenting, listen to this podcast: http://www.divorcesourceradio.com/the-voice-of-a-child-protecting-children-during-divorce/.   The affidavit must also make it clear why you cannot wait to until the court can have a case conference to discuss the issues on your motion.  One thing you must include is when the first case conference date is available from the court and also The affidavit is your "evidence" on the motion.  You do not get to tell the judge any additional facts on the hearing of the motion.  The motion is not a trial, so no one testifies in court. All the facts that the judge needs must be in the affidavits.


13.  If you want other people to give their evidence on your motion, they have to swear their own affidavits. To learn more about getting your story in front of a judge through evidence, which is the only way to do it, watch this video that has tips from a Family Court Judge.


14.  You must serve the Notice of Motion and all of the other affidavits on the other parties that you have named in your Application.  Unless you are trying to bring your motion without notice to the other parties, you must serve them at least 4 days before.


15.  The other parties in your court proceeding have the right to file their own affidavit in response to yours. After they do that, you have the right to file an affidavit that responds to the new facts or issues in the other party's affidavits. However, you cannot raise any new issues in your "reply affidavit."


16.  Two days before the set motion date, before 2:00 p.m., you must file a form 14C to tell the court and the judge whether your motion is going ahead as scheduled or not.  Most courts let you file your 14C by faxing it to a special fax number, but the 14C is the ONLY document you can file that way.


17.  Then you show up on the day of the motion and you explain to the judge why the law says you should get your custody order (and why you could not wait for the case conference).  The judge usually will have had the opportunity to read all the affidavits, so you will only want to mention the most important facts and tell the judge where to read about them in all the materials that were filed (using specific tab and page numbers if possible).  Keep in mind that motions are supposed to be argued in less than an hour total.  So, you should plan on speaking to the judge for no more than 20 minutes at first.  That includes the time that the judge asks you questions.  The other party will get about the same amount of time.  Then you will get to speak to the judge about any new facts or issues that the other party spoke about that you did not mention in your first twenty minutes.  However, this is not a time to repeat your points.  The judge's time is precious and there are a likely other cases waiting.  So you do not want to be repetitive, or do anything else to upset the judge.  To find out what gets judges upset, and could make them decide against you,:check out this webpage.


18.  The judge will then either decide your case on the spot, or "reserve" which means the judge will decide the case later and send a written decision to you.  The decision is different from a formal court order.  If you need a formal court order, that is another process... which can the topic of another post.  Or you read about it in the book that I mentioned above.


19.  If the judge decides against you, or decides the motion could have waited until after a case conference, then the judge will likely order you to pay the legal fees and other costs of the other party.   This is where not using a lawyer can really cost you. If you do not get your own lawyer, you can end up paying the cost of your ex-spouse's lawyer if you lose. All the court forms are found here: http://www.ontariocourtforms.on.ca/english/family.  Also, I did not quote the precise rules that set out all of the above, but you can find the Family Law Rules here: http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_990114_e.htm .


If you need to hear a bit more about Ontario Family Court procedure, watch this video:



Book - Guide to the Basics of Ontario Family Law

Again, the process for bringing an urgent motion is a complicated one, and you have to tell the judge the right things.  So, you should consult a good divorce lawyer, and get a copy of this paperback book on Ontario family law or the $9.99 Kindle eBook, Kobo eBook or iBook for iPad/iPhone that cover all of this in more detail.  You can download either e-book immediately and start learning more about family court, child custody, all other family issues before you take any more steps - including steps that might harm your case.


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Get in touch with Certified Specialist in Family Law, Divorce Lawyer, John Schuman and his team immediately by calling 416-446-5847, emailing him, or using the contact form below (be sure to fill in all the fields so we can get back to you quickly.

Guide to the Basics of Ontario Family Law Available on Kindle


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Can Grandparents be forced to pay child support?

grandparent caring for grandchildAs families change, and tough financial times means that parents have to work more and more just to pay the bills, grandparents are becoming more and more involved with raising their grandchildren.  To help out, grandparents can spend a lot of time looking after children so their parents can work.  Sometimes, they spend so much time helping to look after children that they are actively parenting their grandchildren.  But, grandparents need to be careful, especially when their children are separated or divorced.  Anyone who parents a child can be liable for child support, not just the biological parents.  So, just as step-parents can be forced to pay support, so might grandparents who, with the intent of helping out their children, start parenting their grandchildren.  Most grandparents don't think that they may have to pay child support to their former in-laws just by "helping out."  But, this is something grandparents should think about.

Liability for child support is not based only on biology (or an adoption order). Natural (biological) and adoptive parents are always liable for child support for their children.  However, anyone who assumes the role of a parent of a child also becomes liable for child support.   If  grandparents, stand in the place of a parent, meaning that you are more than just babysitters and take an active role in parenting the children, then the children's parents can ask them to pay child support too.  Being in the role of parent means more than being the spouse of a child’s parent and occasional babysitter.  To be liable for support, a grand parent (or step parent) must take an active role in parenting the child. Some facts that show that include: making major decisions for the child, disciplining the child, referring to the child as “my child”, providing financial assistance to the child and having a close emotional relationship with the child. 

It is possible for a child to have three or more parents for the purposes of child support and for two or more parents to pay the full Table Amount of child support to the parent with whom the child resides.    Biological or adoptive parents always pay the full table amount.  Other parents  may or may not pay the full table amount.  However, the more a grand parent acts like a full parent, the closer the  child’s relationship with the grand parent, and the more the child is financially dependent on that grand parent, the more likely that grand parent may end up paying full table support based on the grandparent's income. 

For more on how grand parents (or step parents) can end up paying child support,  check out this webpagewatch this video  and listen to the last topic in this podcast.  If you feel concerned after checking out these resources, you should make an appointment to see a family lawyer.


If you were not married in Ontario, can you get divorced in Ontario? What if your ex-spouse lives someplace else?

Judge hammer by raffaella_biscuso -  divorce court gavel

Yes.  What matters when you are getting divorced is where you live at the time you are getting the divorce.  Where you got married almost never matters.  You are not entitled to get divorced in Ontario if you have not lived in Ontario for one year - even if you were married here. 


For a Canadian Court to grant a divorce one of the spouses must have lived in the province granting the divorce for one year.  If you have not lived in Ontario for one year, then you have to wait to get your divorce. That is on top of the requirement that you and your spouse be separated for one year.  (There are a limited number of circumstances when you do not have to be separated one year to be divorced - see this article).  


It is possible that Canada will not recognize your divorce if you get divorced in place where neither spouse is living.  That is true even if you go back to the place you were married.  If you get divorced in a place where neither spouse lives, you may have to go to court in Ontario to have your divorce recognized here.  See this court case.


The biggest problems separated spouses face when they want a divorce from someone who lives in another country is often finding the other spouse.  For advice on what to if you do not know where ex is, see this webpage.


For more information about getting an Ontario Divorce, including how long it will take, watch this video.

When getting divorced, you may have rights to support, property claims or rights in relation to the children.  Some of those rights end or change when you get divorced.  So, you may want to speak to a family lawyer about your options.  You can also read this $20 easy-to-understand book on Ontario Family Law to make sure you are unknowingly making a mistake. 

Can a Children's Aid Society Interview my Children without my consent? Should I speak to the CAS?

children being taken by children’s aid societyYes. In Ontario, a Children’s Aid Society has the right to interview children without their parents’ consent during the course of a child protection investigation (an investigation into abuse or neglect).  The Ministry of Children and Youth Services included interviewing children in the standards for the proper conduct of child protection investigations.  Decisions in Ontario’s Child Protection Courts then said that functions of children’s aid societies under s. 15(4) the Child and Family Services Act must conducted in a manner consistent with those standards, which means the Act requires interviews of children.  Since the standards say that children should be interviewed in the absence of the adults under investigation, that means the children’s aid society must interview children alone. The school cannot stop the CAS from interviewing a child either.  There may be issues as to whether a particular CAS worker is qualified to interview a child with specific special needs.  However, refusing to let a child speak to a CAS worker only makes it look like you are trying to hide something and you are afraid that the child may tell the CAS that you are abusing him or her.


Children are allowed to have a lawyer present while being interviewed.  However, it is the child’s right to have the assistance of a lawyer not the parent’s right to have the child have a lawyer.  It must be the child who seeks out and retains the lawyer, not the parent.  When a parent intervenes to get a child the lawyer, that also looks like the parent trying to interfere with the child protection investigation to hide something.  In short, if a parent sends a lawyer into the interview with the child, that looks bad to both the children’s aid society and the judge.


Whether you speak to a CAS worker yourself is a more complicated matter - and you really need to consult with a lawyer who does child protection law.  If you do not cooperate with the CAS, that will be held against you.  However, if the concerns are that you did something contrary to the Criminal Code, then you also have a right not to speak to the CAS because the CAS worker will tell the police every thing you say.   If you are charged, you statements may be used against you in criminal court.  If you do not speak, your refusal to speak to the CAS may be used against you in child protection court and make it difficult for you to get your kids back if the CAS takes them.  This is a very difficult situation to be in.  Child protection lawyers (the small number of family lawyers who do Children's Aid Society cases) can give you a lot of valuable advice, specific to your situation, to try to keep you out of trouble.


Another good reason to speak to child protection lawyer right away is that there is a big advantage to having a lawyer ready to fight back right away if the Children's Aid Society does take your kids, or starts court proceedings, or asks you to sign an agreement permitting the agency to be in your life.  For more on that, see this article.


Guide to the Basics of Ontario Famly Law - an easy to understand book to help with separation, divorce, family court, mediation, arbitration and child welfare

There is also a chapter on what to do when the children’s aid society is investigating you in this easy-to-understand book on Ontario Family Law, which available as a paper back and as a $9.99 as a Kindle eBook, Kobo eBook, or iBook for iPad, iPhone or Mac Get a copy today because you really need to know not only your rights when dealing with a children’s aid society, but also how to avoid saying or doing things that seem like a good idea, but which the children’s aid society can use against you.  The ebook can be downloaded in minutes, so you can find out more immediately - before you speak to the CAS or do anything further.


It really is worth your while to consult a child protection lawyer and read the book because if you get yourself into a trouble in a CAS case, it can take a long time to get yourself out and that may mean that your kids are in foster care for a long time.  Getting good advice early on can keep you out of trouble.

Guide to the Basics of Ontario Family Law Available on KindleiBookstore_140x70


John Schuman is a Certified Specialist in Family Law who has done children’s aid society cases for more than 15 years, acting for parents, children’s aid societies and native “bands” (the term in the Child and Family Services Act for First Nations. HIs article on the developmentally appropriate way to interview children is still one of the leading resources used to teach investigators how to interview child witnesses.  John is also the author of the “Child in the Courtroom” chapter of Wilson on Children and the Law.  John has a unique approach to advancing the interests of parents and their children (and sometimes their First Nation) by using his comprehensive knowledge of child protection law and constitutional law to develop effective strategies.   He has developed this different, yet effective, approach because John does not practice under the Ontario Legal Aid Plan and is not constrained by the limitations of that service because he operates with private financial retainers.   To contact John Schuman, call 416-446-5847, email him, or use the form below.  We view child protection and children’s aid societies matters as emergencies and we will get back you immediately.  Be prepared to come in for a consultation right away as we want to respond to the CAS and protect you right away.


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© John P. Schuman 2014