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!

If I am Right, Will I Win Big in Family Court?

Judge in Family Court


This website provides a lot of useful information about Family Law to let you know if you are on the right path in your separation and divorce.  Reading this best-selling book on Ontario Family Law will give you ever more information about what the law says and some tips for how to do well in court.  So, that should give you a good idea of whether you are “right.”  Also, knowing what you are talking about can really help in Family law, and prevent you from making some big mistakes.  But that does not guarantee that a judge will crush your ex.




If you are being reasonable, and following the law, you should be fine in Family Court.  If your ex is being reasonable, then your ex will probably be fine too.   If both sides are being reasonable, then many Family Court judges think it is unreasonable to go to Court because there are lots of good alternatives out there, such as mediation, mediation/arbitration and Collaborative Practice.  Those judges may get upset with a person who starts proceedings, even if that person is “right”, because the parties could have worked out the matter without going to the expense and acrimony of Court.




Family Court is a place where there are a lot of emotions.  Even though strong emotions are normal in separation and divorce , judges do not dealing with them, or even seeing them because they make people act irrationally and even badly.  Judges, lawyers and the legal processes do not deal well with the emotional side of divorce.  (If you need help with the emotional side of divorce, hiring a reputable divorce coach / divorce doula can really make every aspect of your life, including the legal part, go more smoothly.  Avoid hiring a cheerleader though, as a cheerleader can encourage you do things that upset judges.)  Emotions can be such a factor, and often a problem, in Family Court that Judges rarely like to see one side “win” outright because the emotions that causes can lead to problems that make the rest of the case more difficult.




Also, keep in mind that it is rare in Family Court cases for one side to be entirely right and the other side entirely wrong - especially if both sides have had assistance from a lawyer - either through representation in court, or assistance on a limited scope basis (legal coaching).  So in many situations, one side is right on some issues and the other side is right on others.  


If it is absolutely clear that one side is right and one side is wrong on any issue, or several issues, then court should not be necessary at all.   The lawyers should be able to advise their clients of how the law works and since the result is clear, the parties should be able to agree to it without going to the enormous expense of having a judge decide it.




Of course, there are times when one side is completely unreasonable and will not agree with what should be an obvious result, or when an angry spouse thinks that by making the litigation as difficult as possible, he or she can force the other party to give up on a reasonable position.  When such cases makes it to a judge, the decision will be that one party wins, and the unreasonable party can go down hard.  Being reasonable may not always guarantee a win, but being unreasonable can guarantee a party will lose - unless both sides are equally terrible.  It is important to know and understand what types of things that judges always view as unreasonable


It is also critically important that everything that you write for that a judge reads (including instant messages, emails and social media posts) makes you look like the reasonable one.  You also need to give the right impression to the judge every time you are in Court.  Even if your position is reasonable, a judge may think you are an unreasonable person, even an undeserving person, based on your behaviour.   It is not enough to take a reasonable position, you have to act reasonably, all the time. 



Ontario Family Law Podcast


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

31 - How Lawyers Help at Family Mediation

It may not be possible to overstate how much lawyers can help in Court.  Obviously, it is important to know how the family court system works and exactly how the law applies to your case. You may get a good feel for that by doing your research, but a top family lawyer will have experience and knowledge of lots of cases to know how your case will work out it court.  In addition, a big part of being a good lawyer is knowing how to present a case to a judge - knowing what judges like to hear and how they like to hear it, often knowing what particular judges like and do not like.  That can make a big difference in how you do in court, especially where the lawyer knows now to make the other side appear unreasonable or unlikeable. (In mediation and arbitration, the mediator or arbitrator gets much better opportunity to meet and understand the parties - much more so than judges can.)

Guide to the Basics of Ontario Family Law - 4th edition cover
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The best way to protect yourself, yourself, your children, your stuff and other things and people that are important to you, 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. Contact Certified Specialist in Family Law (and author of the book to the left), John Schuman, by emailing him, calling 416-446-5869, 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). 

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You can get a lot more information about Ontario Family Law issues, including property division, 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 after a separation.



If My Ex Gave Me Furniture, Do I Have to Give It Back If We Break Up?

apartment-architecture-bookcase-271816


Ontario Family Law Podcast

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

29 - Common Law Separation and Property Division

9 - Property Division in Ontario After Marriage


Gifts made during a relationship can be the source of tension and conflict when that relationship breaks down and the reason for giving the gift no longer exists.  Although items such a furniture are usually not worth enough to justify hiring a family law lawyer, other gifts such as jewelry, engagement rings or art can be worth going to family court or arbitration over.  Still, knowing the law can help you resolve these disputes.

The first big question when dividing property after a relations is whether you and your spouse were married.  If you were married, everything you owed remains yours, but the furniture would be part of your net family property and the value of it would be shared pursuant to section
5 of Ontario's Family Law Act.  (Watch the video below for more on property division in an Ontario Divorce).  In a divorce, section 24 of the Family Law Act says a judge can order that a spouse cannot take the furniture or other contents out of a matrimonial home - regardless of who owns it.)




If you and your ex were never married, then, in Ontario, Family Law does not apply to property issues and you each own what you own and can do what you like with it.  That rule can be subject to claims in equity, which separated common law couples make regularly. 
This podcast explains those claimsYou can defeat those claims if you can prove  that the gift was clearly a gift.  Separating spouse frequently say that a gift was not actually a gift, but a loan, or a conditional gift, or something that was meant for both spouses to own together.  It is up to the person alleging the gift to prove it.  But, if it is clear that the furniture, or other items, were an unconditional gift to you, then they are yours to deal with as you like.  If you have any doubt as to whether it was an unconditional gift, you probably need to speak to a family law lawyer about the specifics of your case.

You can get a lot more information about Ontario Family Law issues, including property division, 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. But, it is always best to speak to a good family law lawyer


Guide to the Basics of Ontario Family Law - 4th edition cover
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The best way to protect yourself, yourself, your children, your stuff and other things and people that are important to you, 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. Contact Certified Specialist in Family Law (and author of the book above), John Schuman, by emailing him, calling 416-446-5869, 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). 

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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 how to divide up the “stuff” after a separation.











Do Child Support Payers Have to Provide Their Complete Tax Returns Every Year? Or Just Their Notice of Assessment?


42-15997889


The Child Support Guidelines (section 3 and 24.1) contemplate that the amount of child support will be reviewed every year.  This is consistent with the objectives of the Guidelines, to ensure that children benefit from the financial means of their parents.  That would not occur if one parent starting making a lot more (or a lot less) and the amount of Child Support did not change to reflect that.

 

To ensure that the correct amount of child support is paid every year, the Guidelines require parents to exchange income information, every year.  It does not matter whether child support is owed pursuant to an agreement or court order.  Section 24.1 of the Child Support Guidelines reads as follows:

 

24.1 (1) Every person whose income or other financial information is used to determine the amount of an order for the support of a child shall, no later than 30 days after the anniversary of the date on which the order was made in every year in which the child is a child within the meaning of this Regulation, provide every party to the order with the following, unless the parties have agreed otherwise:

1. For the most recent taxation year, a copy of the person’s,

i. personal income tax return, including any materials that were filed with the return, and

ii. notice of assessment and, if any, notice of reassessment.

2. As applicable, any current information in writing about,

i. the status and amount of any expenses included in the order pursuant to subsection 7 (1), and

ii. any loan, scholarship or bursaries the child has received or will receive in the coming year that affect or will affect the expenses referred to in subparagraph i.  O. Reg. 25/10, s. 6.

Notices of assessment

(2) If the person has not received his or her notice of assessment or notice of reassessment for the most recent taxation year by the date referred to in subsection (1), the person shall provide every party to the order with a copy of the notice as soon as possible after the person receives the notice.  O. Reg. 25/10, s. 6.

Change in address

(3) If the address at which a party receives documents changes, the party shall, at least 30 days before the next anniversary of the date on which the order was made, give written notice of his or her updated address information to every person required to provide documents and information under subsection (1).  O. Reg. 25/10, s. 6.

Failure to comply

(4) If a person required to provide a document or information under this section fails to do so, a court may, on application by the party who did not receive the document or information, make one or more of the following orders:

1. An order finding the person to be in contempt of court.

2. An order awarding costs in favour of the applicant up to an amount that fully compensates the applicant for all costs incurred in the proceedings.

3. An order requiring the person to provide the document or information to,

i. i. the court,

ii. the applicant, and

iii. any other party to the domestic contract or other written agreement to whom the person did not provide the document or information when required to do so.  O. Reg. 25/10, s. 8.

the person did not provide the document or information when required to do so.  O. Reg. 25/10, s. 6.

 

 

Section 25.1 requires disclosure of the same information when support is due pursuant to a domestic contract.  Where the support payer earns a substantial part of his/her income from sources other than employment, section 25 of the Child Support Guidelines requires additional disclosure.  Listen to this Podcast on Family Law Disclosure and read this page to understand how disclosure works in Family Law Cases, and more about what can happen when a parent does not provide disclosure.

Ontario Family Law Podcast

 

32 - How to Change a Support Order

34 - Financial Disclosure in Family Law Cases

If the support payer earns most of his/her income through employment, then consider using the Ontario Government’s Online Child Support Calculation Service.  The government will access both parties’ income tax returns and adjust base support and some Section 7 expenses.  The cost of this service is $80 per parent and both parents must agree, and qualify, to use it.   The court process, which is necessary where parent’s incomes are more complex, one parent is self-employed, or there is split or shared custody, can be challenging.  Watch the video below on changing child support in court to understand more. 

 

If your child support case is more complex, or you have an ex who insists on making things difficult, then it may be time to 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 416-446-5869, 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).

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 further explanation of child support, disclosure, the court process for obtaining and changing child support, and other family law issues by downloading this $9.99 e-book  for KindleKobo, or iPad/iPhone/Mac or ordering the paperback version.   But, to keep out of trouble, it is always best to speak with a good family law lawyer.

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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.



Can common law partners create a legal and binding separation document without a lawyer?


Custody of child


In Ontario, section 55(1) of the Family Law Act says that for a separation agreement to be a separation agreement, it must be in writing, signed by the parties and witnessed. 

However, the considerations do not end there.  There are additional factors a judge must consider when deciding whether to enforce a separation agreement.  If the court will not enforce a separation agreement, then that agreement is only worth anything while both parties agree to follow the terms.  If one party decides not to follow the terms, and the agreement is not enforceable, then there is nothing the "innocent" party can do.

The other factors that a judge will consider in deciding whether to enforce a separation agreement are set out in section 56 of the Family Law Act.  Judges do not have to follow agreements as they relate to custody, access, or the upbringing of children.  They also do not have to follow agreements with respect to child support where the agreement is not consistent with the Child Support Guidelines.  Any term that requires a party to remain chaste after separation is invalid.


Ontario Family Law Podcast

24 - How to Have a Valid and Enforceable Separation Agreement



However, where many agreements run into trouble, that a lawyer can avoid, is under section 56(4) of the Family Law Act.  You can learn more about those considerations by listening to this podcast, or reading this page.  However, section 56(4)(b) says that a judge can set aside a separation agreement if either party did not understand it.   The evidence that judges look for when trying to decide if someone understood a legal document is whether that person got advice from a lawyer.  As a result, judges frequently refuse to enforce (i.e. ignore) agreements where the parties do not have Certificates of Independent Legal Advice attached to contract.   Section 56(4) lists some additional potential problems that lawyers help their clients avoid to ensure that both parties are bound by the separation agreement.

Obviously, people who sign separation agreements want the certainty that such documents provide against future arguments, fights and claims by a former spouse.  Having an unenforceable contract does not help with that at all. So, seeing a lawyer to get Independent Legal Advice is well worth it.




Another common mistake that people make when signing separation agreements is not understanding what the law says each side should get.  Some people give away way to much, or get way to little, because they don't know what Family Law actually says.  You can get a lot more information about Ontario Family Law issues, including support and property division and most other common family law issues by downloading the latest edition of this best-selling $9.99 e-book for KindleKobo, or iPad/iPhone/Mac or ordering the paperback version.  But, to keep out of trouble, it is always best to speak with a good family law lawyer. 

Guide to the Basics of Ontario Family Law - 4th edition cover
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But the best way to protect yourself, your investment in your home and other things and people that are important to you, 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. Contact Certified Specialist in Family Law (and author of the book above), John Schuman, by emailing him, calling 416-446-5869, 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). 


Feel free to share this page on your social network by clicking on the buttons below.  To contact John Schuman about your case, or comment on this page, use the form below.


Can My Spouse Change The Locks on Our Matrimonial Home Just Because I Am Not On Title?

House 2 photo


When spouses are married, the home (or homes) in which they lived together, and separated are special.  Those properties are "matrimonial homes."   In Ontario, on separation and until there is a Divorce Order, both spouses are equally entitled to stay in the matrimonial home, regardless of who owns it. That means one spouse cannot do anything to "kick out" the other or prevent their estranged spouse from going back into your home other than getting a court order for “exclusive possession.”  That Order gives one spouse the exclusive rigth to be in the home.   Click this link for a lot more information on spouses rights to stay in matrimonial homes.



Ontario Family Law Podcast

9 - Property Division in Ontario After Marriage

29 - Common Law Separation and Property Division


It is important to note that spouses who are not legally married (
common law couples) do not have matrimonial homes and common law couples do not have rights under Ontario Family Law to stay in a home after separation.   There may be things a common law spouse can do under landlord tenant law or other laws.  But, if the end of the relationship is going that badly, speak to a top family law lawyer right away. 



When the spouse who is not “on title” contributed to the value in the home, that may give that “non-titled spouse” an ownership interest in the property under the
Principles of Equity.   Those principles operate when spouses

1. treated a home owned by one of them as if it was really owned by both of them and

2. one spouse has lost out as a result.

Clearly that is not fair, and fairness is what the Principles of Equity are about. 


However, for married spouses, making a claim under Equity for an interest in a property is harder because the value of matrimonial homes is always included in Ontarios Equalization of Property on separation - unless there is a marriage contract.  If the value of the home is already being shared, one spouse does not really lose out unless there is a big change in the value of a matrimonial home after separation.  Consult with a lawyer if that may be the case.

 



Hopefully, if one spouse changes the locks, the police will recognize the other spouse's rights under
Part 2 of the Family Law Act.  If the police recognize those rights, the officers will let both spouses enter the home until there is a divorce or another court order preventing it.  But if the police will not assist with gaining access to the home, it may be time to start the Family Court Process.


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

You can get a lot more information about Ontario Family Law issues, including property division, 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. But, it is always best to speak to a good family law lawyer.

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But the best way to protect yourself, your investment in your home and other things and people that are important to you, 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. Contact Certified Specialist in Family Law (and author of the book above), John Schuman, by emailing him, calling 416-446-5869, 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). 


Feel free to share this page on your social network by clicking on the buttons below.  To contact John Schuman about your case, or comment on this page, use the form below.

We Have Custody of Our Grandchild: Can We Get Child Support?

granddaughter-grandfather_med-2


Biological parents are always child support payers under the Child Support Guidelines and they always pay the full table amount.   When a child is in the care of someone who is not a biological (or adoptive) parent,  each biological parents is required to pay full table support - unless the child has been adopted as adoption severs the legal ties between a child and parents.   If a parent  is not self employed or earns most of his or her income from a source other than a salary, government benefits or other predictable and easy-to-calculate source, then child support is a simple calculation done using the Child Support Guidelines and the tables.   It is so simple, that there is an online government service for calculating and setting up child support that can replace court if the support payor and support recipient agree.  

Ontario Family Law Podcast

When the parties do not qualify for that service or someone does not agree to use it, it may be necessary to go to court, although there are still other alternatives to court - either mediation, mediation/arbitration or Collaborative Practice.  For even more information about child support, and the options for getting it, pick up a copy of this easy-to-understand book on Ontario Family Law and see a top Family Law Lawyer

10 - Child Support - Who Pays and How Much?

11 - Child Support's Special and Extraordinary Expenses

For big expenses in relation to children, there may be additional child support obligation. Orthodontics, child care, high level sports, medical expenses and other large expeneses would be “section 7 expenses.” The Child Support Guidelines say the cost of such expenses should be shared be all “parents” - the custodial parents and the biological parents - in proportion to their incomes.  For more information on child support and section 7 expenses, listen to the podcasts to the left. 

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 further explanation of child support, the rights of grandparents and other parenting legal issues by downloading this $9.99 e-book for KindleKobo, or iPad/iPhone/Mac or ordering the paperback version.  But, to keep out of trouble, it is always best to speak with a good family law lawyer.

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Get the help of a lawyer immediately to avoid financial hardship for both you and the kids.  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 416-446-5869, 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 legal parenting issues after separation and how to best to protect the children.

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How Do I Appeal My Child’s Suspension From An Ontario Public School?

student being suspended by principal


Children in Ontario have a right to attend publicly funded schools.  Except in specific circumstances, School Boards cannot  refuse to allow a child to attend school.   Public School Principals can suspend their students from attending school for up to 20 days to discipline specific types of behaviour. The student, or the student’s parents, have the right to appeal that suspension.  However, since the School Board has 15 days to convene the suspension appeal from the date it receives a Notice of Appeal, the child is often back at school before the appeal hearing.  In most cases, the appeal is about what record is in the child’s Ontario School Record.


Note that these rules for suspensions do not necessarily apply to private schools or independent schools, and in most cases do not.  


The Suspension Notice and Notice of Appeal

A student is not suspended until the parents (or the student who is 18) gets the written letter saying the student is suspended that sets out the following: 

  1. The reason for the suspension.
  2. The duration of the suspension.
  3. Information about any program for suspended pupils to which the pupil is assigned.
  4. Information about the right to appeal the suspension including the contact information for the Board Superintendent to whom the parents must send the Notice of Appeal and a copy of the Board’s policies and guidelines for suspension appeals.


Section 309(3) of the Education Act says that parents must send their Notice of Suspension to the appropriate superintendent within 10 days of receiving the letter from the principal. 


The Grounds to Appeal a Suspension

A parent cannot appeal their child’s suspension for any reason.  There are three specific bases on which to challenge a principal’s decision to suspend a student:

  1. The alleged behaviour did not occur;
  2. The alleged behaviour is not behaviour for which a student can be suspended either because:
  3. The principal did not properly consider the mitigating factors that would require that the student not be suspended. 

This page will cover these grounds, as they are the ones that parents should choose from when writing the notice of appeal.  


Challenging the Facts Alleged By the Principal 

It is possible that, after doing an investigation, the principal got the events wrong and suspended a student for something that the student did not do.  This is, by far, the most difficult basis on which to win an appeal. In any appeal the principal is assumed to have gotten the basic facts right, unless, there is evidence to show that the principal got it wrong.  Where a student’s version of events differs from the principal’s, it is likely that the Board members hearing the appeal will believe the principal’s version - unless there is some objective evidence supporting the student's story.  So, parent need to gather written witness statements and see if there are other documents that support the student’s version.


As part of the appeal process, the parties have to exchange the evidence that they have that is relevant to the appeal.  Often, the principal provides this disclosure in the days leading up to the appeal hearing and rarely any earlier.  However, it is important for the parents to carefully review that disclosure to see if there is anything that supports their child’s case, whether there is anything that might undermine the principal’s credibility, and whether there are any notes or other forms of documentation that are suspicious by their absence.  That can all be used to challenge the version of the facts presented by the principal at the appeal hearing.


Making Sure the Behaviour Is A “Suspendible Offence”

Students cannot be suspended for any form of bad behaviour.  Section 306 of the Education Act, sets out all the behaviour for which a student may be suspended.  That list is as follows:

  1. Uttering a threat to inflict serious bodily harm on another person.
  2. Possessing alcohol, illegal drugs or, unless the pupil is a medical cannabis user, cannabis.
  3. Being under the influence of alcohol or, unless the pupil is a medical cannabis user, cannabis.
  4. Swearing at a teacher or at another person in a position of authority.
  5. Committing an act of vandalism that causes extensive damage to school property at the pupil’s school or to property located on the premises of the pupil’s school.
  6. Bullying.
  7. Any other activity that is an activity for which a principal may suspend a pupil under a policy of the board.

 

With regard number seven above, parents have to check the Suspension/Expulsion policy of their child’s particular board to see what other specific behaviour can be the basis for a principal to suspend a student.


In addition to the above, the following behaviour are ones for which a principal is required to suspend a student (these are also behaviours for which a School Board may expel a student): 

  1. Possessing a weapon, including possessing a firearm.
  2. Using a weapon to cause or to threaten bodily harm to another person.
  3. Committing physical assault on another person that causes bodily harm requiring treatment by a medical practitioner.
  4. Committing sexual assault.
  5. Trafficking in weapons or in illegal drugs.
  6. Committing robbery.
  7. Giving alcohol or cannabis to a minor.
  8. Repeated Bullying.
  9. Bullying that  creates an unacceptable risk to the safety of another person.

Other more severe forms of the behaviour listed above can lead result in a mandatory suspension or expulsion.


If the alleged behaviour does not fall under one of the categories set out above, then the student cannot be suspended for it.  So, for example, a student cannot be suspended for repeatedly not doing homework - unless there is a Board policy that allows a student to be suspended for that.  It is important to check the Board policies to make sure the alleged behaviour is listed there.   If the alleged behaviour does not fall in the list of “suspendible offences”  then the appeal will be successful.


The appeal will also be successful if the behaviour is not closely linked to the school. Section 306(1) of the Education Act says that a student can only be suspended for behaviour that student engaged in: 

  1. while at school, 
  2. at a school-related activity, or 
  3. in other circumstances where engaging in the activity will have an impact on the school climate


With regard to the last point, the Child and Family Services Review Board has held, in J.G. v. Kawartha Pineridge District School Board,  that for an activity to impact the school climate, there must be a close “nexus” between the activity and the school AND it must affect the “school climate” generally, not just one or two students.  So, if a student shoplifts on the weekend, or does or traffics drugs at a party that is not related to school, or gets into a fight that has nothing to do with school, even if the student is criminally charged, he or she cannot be suspended from school (although the terms of Criminal Court Orders can force a child to change schools).  


Mitigating Factors

Ontario Regulation 472/07 sets out a number of factors that a principal must consider before suspending a student.  These factors, which are often the focus of successful appeals, are all ones that reduce the length of a suspension or make a suspension entirely inappropriate. The factors that a principal is required to consider before suspending a student are: 

  1. The student does not have the ability to control his or her behaviour.
  2. The student does not have the ability to understand the foreseeable consequences of his or her behaviour.
  3. The student’s continuing presence in the school does not create an unacceptable risk to the safety of any person.
  4. The student’s history (if it mitigates these seriousness of the behaviour).
  5. The absence of a  progressive discipline approach being used with the student, if that approach was possible. 
  6. Whether the activity for which the student may be or is being suspended was related to any harassment of the pupil because of his or her race, ethnic origin, religion, disability, gender or sexual orientation or to any other harassment.
  7. How the suspension or expulsion would affect the student’s ongoing education.
  8. The age of the student (if it mitigates the seriousness of the behaviour).
  9. whether the suspension is likely to result in an aggravation or worsening of the student’s behaviour or conduct.
  10. In the case of a student for whom an individual education plan has been developed,
  • whether the behaviour was a manifestation of a disability identified in the student’s individual education plan,
  • whether appropriate individualized accommodation has been provided.

It is also possible to challenge a suspension on human rights grounds.  For example, repeated suspensions are often an indication that the school is not meeting a student’s needs or does not have appropriate strategies in place to educate the student.   Where a school is not accommodating a student’s special needs, it is possible to raise arguments pursuant to the Ontario Human Rights Code or the Canadian Charter of Rights and Freedoms.  However, usually it is not necessary to resort to such arguments because it is already possible to challenge a suspension based on mitigating factors 6 and 10 above. 


The Appeal Process

If a principal suspends a student to conduct an investigation into whether the student should be expelled, there is no right of appeal until after the principal has completed the investigation and the child receives a suspension rather than being expelled.  Section 310(4) of the Education Act says that a principal can only suspend a student for 20 school days to allow the principal to make that decision. 


In all other cases, section 309(6) of the Education Act says that the hearing of the suspension appeal must occur within 15 school days of when the parents deliver their Notice of Appeal.  While the School Board can set up the precise procedure for the hearing of the appeal, it must be heard by School Board Trustees.  The precise procedure is set in the School Board’s policy regarding suspensions and expulsions.  In most cases, it is a committee of three or more trustees that hear the appeal.   The hearings are usually short.  Few School Boards contemplate having witnesses and cross-examinations at a suspension appeal.  However, the hearing must give all the sides an opportunity to be heard.  While there is no right of further appeal from the School Board’s decision, the lack of procedural fairness can give parents a basis on which to ask the Courts to intervene.


Additional Assistance

The video below contains additional information on appealing suspensions and expulsions. 


Also, note that an “exclusion” or a “trespass notice” are not the same things as a suspension or expulsion.   Principals and School Boards cannot use an “exclusion” or a “trespass notice” to prevent a student from attending the school in which that student is enrolled. 


Children’s Rights Lawyer, John Schuman, and his colleagues have extensive experience in appealing suspensions and in advocating for children who are running into difficulties at school. We can provide legal representation at an appeal hearing, or negotiations, or we can just provide information and advice about the process.   Call us at 416-446-5869, 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.


My Ex Wants This Weekend With Our Child, But It's My Weekend! What do I do?

parent and children walking away


Ontario Family Law Podcast

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

24 - How to Have a Valid and Enforceable Separation Agreement

32 - How to Change a Support Order

35 - Resolving Children's Issues Outside of Court

A carefully drafted separation agreement, Family Court Order,  or parenting plan will anticipate most things that will come up in a child's life.  But, it is not possible to anticipate everything.  Things always change for children and unanticipated things creep up.  Judges understand that, even when a judge has spent the time determining what custody order is in a child's best interest.  So, where parents can agree that a change to what is set out in a court order, either for once or permanently, is in a child's best interest, then judges understand - unless a children's aid society or the judge's order says that no changes are allowed. In most cases, judges (and children's aid societies) like it when parents can agree to changes to schedules, and other aspects of their children’s lives, in ways that benefit their children.


With judges preferring parents being flexible to meet their children's best interests, the purpose of Parenting Orders, parenting plans or separation agreements is to really to set out what will happen when the parents, unfortunately, cannot agree.  When parents cannot agree whether something is in a child's best interest, the "fall back" is what is in the Court Order, parenting plan or separation agreement.  Put another way, if the parents do not agree to deviate from the parenting plan, one of them cannot to so without getting a judge to change the Court Order or agreement


When a parent asks a judge to change a Parenting Order or agreement, the judge will decide what to do based on what is in the child's best interest. It is possible that decision is not what one, or both, parents want.   Also, a parent who refused unreasonably refused to cooperate with the other parent, or denied to make changes without a good reason, may get in trouble from the judge.  That parent may have to pay the other parent's legal fees.  Or, can lose custody of the child if the judge thinks the parent was trying to harm the child's relationship with the other parent.  It is always best to try to be reasonable and cooperate when it comes to parenting after separation - even when the other parent is being unreasonable. 


The process for going back to court can be quite complicated, and involve several court appearances.  Before going to court, it is important for a parent to gather the evidence that what they want is in the child's best interest.  All that will not be worth it for one simple change.  And, it is unlikely you will get the change made or an upcoming weekend.  (Note, it is best to get travel consents arranged months in advance to avoid court delays.)  Parents who find that they have a lot of difficulty cooperating with the other parent and the Court Order or Parenting Plan does not resolve the issues, may want to consider using a parenting coordinator.  That professional can quickly either assist with, or make, parenting decisions, such as whether a child should attend a special event on an upcoming weekend.  It is important to keep a child insulated from, or losing out because of, fights between parents.


But, when the other parent is being unreasonable, or causing unnecessary fights or stress, then that parent should see a family lawyer right away to know your options and how best to protect and ensure stability for the child. Contact Certified Specialist in Family Law, John Schuman, by emailing him, calling 416-446-4036, 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).

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 further explanation of child custody and parenting legal issues by downloading this $9.99 e-book for KindleKobo, or iPad/iPhone/Mac or ordering the paperback version.  But, to keep out of trouble, it is always best to speak with a good family law lawyer. 

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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 legal parenting issues after separation and how to best to protect the children. 

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How Do I Get a Family Court Order Out of My Child’s Ontario School Record?


school-building-with-bus-student-back-to-school-4



Ontario Family Law Podcast

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

17 - Sole Custody, Joint Custody, Shared Custody- How do Judges Decide?

22 - Children's Right's in Ontario Schools

This question is a good one because it touches on the intersection between schools, parents, kids and the law when parents separate.  Parents separating can cause a lot of stress and tension for other people as well.

First, it is critical to remember that the school, the principal, the teachers, and the school board do no want anything to do with parents' separations or divorces. If a parent thinks that any educator is going to “take sides”  and support one parent during a divorce, then that parent will be disappointed. Most school boards have policies that prevent them from becoming involved in disputes between parents.  This does not mean that Family Court Judges do not find the thoughts and observations of teachers useful when deciding which parent gets custody.  But, nobody wants them involved (There are ways to get useful information from educators before the court, which is set out below).

The most important reason why schools will not become involved in disputes between parents is that schools are the kids' "space."  School is more than just a child's "workplace."  It is the center of their social lives, it is where they develop an identity independent of their parents, it can be the center of their non-academic activities and, during times of parental conflict, it is often their sanctuary away from that. So, it is very important that fights between parents do not use the school as the battleground.    Section 305 of the Ontario Education Act and Ontario Regulation 474/00 give principals the authority to bar any parent from entering school premises because he or she has done anything to upset any pupil. If a principal does that, a Family Court Judge is sure to notice.  

With that said, it is very important for schools to know what the current custody order says.  This helps the school avoid making mistakes that can create tensions between parents or can even allow a parent to abduct a child.  It also avoids having the school hand off the child to the wrong parent - or to a parent who is not supposed to visit the child or go to the school.   While it is important for schools to get copies of court orders that relate to the school, it is important that parents do not use those orders as weapons.

If the school has a copy of a court order that it should not have, or that is no longer valid, parents can do something about it.  Section 266(4) of the Education Act allows parents to request in writing that the principal remove any inaccurate information from a student's record.  If the principal does not remove the information, than a School Board superintendent can hold a hearing to determine whether the information should be removed.   The Ontario School Record Guideline sets the test for whether a document or information should be removed from a child's OSR.  Any document that is "no longer conducive to the improvement of  the instruction of the student" should be removed from a student's school record.  Therefore, a principal should remove any expired, repealed, or irrelevant court order from a student's record.  That should get the court order out.

When deciding custody cases, judges need evidence, and they really like the evidence of  impartial professionals. The observations of those professionals of the behavior of the parties, and more importantly, how a child is doing, can really influence a judge when deciding custody cases.  But, judges do not want educators put in the middle.  Section 35 of the Ontario Evidence Act allows judges to admit into evidence any record that a teacher (or other professional) has made "in the ordinary course of business" without having the teacher testify.  Those are any records that someone does as part of their job and not for the purposes of any form of litigation (including disputes in Family Court.)  So, judges will look at report cards, school attendance records, school IPRC reports, individual education plans, school forms and school emails that are not directly about the custody/access dispute.  Those can give the judge a really clear picture of what is going on, how involved each parent is, and whether either parent is being a "problem."  




A parent who is being a "problem" or whose actions are having an adverse impact on a child can get into big trouble in family court. Not being supportive of the other parent, acting unilaterally with respect to the children (especially in contravention of a court order) and not putting the children’s needs first are some of the best ways for a parent to lose custody of children

It is often possible to get these helpful school records without involving any school personnel directly in the Family Court Fight and, most importantly, without bringing the fight to the child's school and sanctuary from the parent's fighting.

You can learn a bit more about the family court process by watching this video or listening to these podcasts (iTunes version here).  

You can get a lot more information about Ontario Family Law issues, including a further explanation of child custody issues and tips to help you and protection your child in and out of court, by downloading this $9.99 e-book for Kindle, Kobo, or iPad/iPhone/Mac or ordering the paperback version.  But, to keep out of trouble, it is always best to speak with a good family law lawyer. 

Guide to the Basics of Ontario Family Law (book)


However, the best way to protect your kids, and your relationship with them, is to see a good family lawyer who has lot of experience in child custody and access cases.  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 416-446-5869, email him, or fill out the form below. You can use the same form to comment on this page.

On school issues, it can also be helpful to get speak to lawyer who knows about education law.

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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 FacebookTwitter, 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 money issues in divorce or separation.



My parents purchased a condo under my name, is there a way for them to legally take the condo back?


condominium


The law does not help your parents at all if title to the condominium is registered in your name and they have nothing registered against the condominium - especially if there is no mortgage or anything else registered against tile.  At law, it is yours and they have no legal claim.

Ontario Family Law Podcast

29 - Common Law Separation and Property Division

8 - How your heart can get you into financial trouble - Step Children and Matrimonial Homes

  
However, Judges in Ontario can also apply the "Principals of Equity."    The Principals of Equity are more fully described in this podcast on Common Law Couples and Property Division.  This is not because you and your parents are considered "common law" but because common law have no right in law to each other's stuff, but they can make claims in equity.

Your parents would say that you are the legal owner, but they are the beneficial owners - or the owners in equity.  This means that nobody intended that you would be owner of the condo, but instead the intention was that you would hold the condo in "trust" for your parents and they would always be the "real owners" even though title is registered in your name.   To succeed, they have to prove that it is more likely than not that this was the case and that they did not intend to give you the condominium as a gift.  You will need some evidence that they did intend to make the condo a gift to you.

If your parents cannot show that the property is a gift, or there is some ambiguity, they can also try to make a claim for "unjust enrichment."   Essentially there is claim it is unfair that you should profit from getting the condominium because they have suffered a large, unjustifiable, loss.   This is explained more in that podcast.  To summarize they need to prove to the judge:

  1. you received a benefit
  2. your parents suffered a loss that corresponds to the benefit (i.e. they are out the money from buying the condo)
  3. there is no "juristic" reason (meaning a reason in law), for you to get the benefit and them to suffer a loss.

If you have been looking after the condominium, and paying the associated expenses without their help, it is hard for them to success because:

  1. it shows that they did not intend to be the owners
  2. you would suffer a loss and they would receive a benefit if they got the condo back and so they would be "unjustly enriched" - assuming you have paid more for those expense than you would to rent the condo from them.

The Principals of Equity are tricky.  Little things can have a big effect on those cases (again that is all explained in the podcast).  So, it would be best for you to speak about the specifics of your case with a lawyer who knows about these kind of cases.


Parents often want to help out their children with first home purchases, but they are also often concerned about a new daughter-in-law or son-in-law getting their hands on that property and getting it away from their child, and possibly the whole family, in a separation or divorce.  The second podcast above goes over the dangers in that situation and how to parents can protect any gift they make to their children - especially in the context marriage. 

Guide to the Basics of Ontario Family Law (book)


You can get a lot more information about Ontario Family Law issues, including property division, support, and most other common family law issues by downloading this $9.99 e-book for KindleKobo, or iPad/iPhone/Mac or ordering the paperback version.  But, to keep out of trouble, it is always best to speak with a top family law lawyer

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Guide to the Basics of Ontario Family Law Available on Kindle


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Obviously, there can be a lot of money involved in when there is real estate involved and that means there can be a lot at stake financially.   Get the help of a lawyer immediately to avoid financial hardship.  Contact Certified Specialist in Family Law (and author of the book above), John Schuman, by emailing him, calling 416-446-5869, 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 money issues in divorce or separation.


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