Family Law Blog

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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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
Get_it_on_iBooks_Badge_US_1114
new kindle logo
New Kobo Logo

Paperback available from:

amazonlogo

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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