Earlier this year, the federal government’s amendments to the Divorce Act came into effect. These substantive changes — the first in more than 20 years — signal a distinct shift away from the adversarial nature of litigation in an effort to make the family justice system more accessible and efficient.

As of March 2021, family lawyers have an obligation to encourage clients to solve issues through a family dispute resolution process unless it would be inappropriate. As a family law litigator and mediator, I frequently discuss alternative dispute resolution (ADR) with my clients because I know how well it works.

There are different approaches spouses can take to make decisions about issues related to separation or divorce, including mediation, negotiation, arbitration, collaborative law and parenting coordination. But, it can be intimidating to consider these alternatives if you’re not familiar with the family dispute resolution process.

What is the family dispute resolution process?

The amended Divorce Act introduces a new concept — the family dispute resolution process — an umbrella term to describe out-of-court methods spouses can use to solve parenting, support or property issues. These different approaches (mediation, negotiation, collaborative law and arbitration) are also known as alternative dispute resolution (ADR). 

One of the most popular approaches is mediation where a neutral third party, a mediator, helps parties identify and discuss parenting, separation, or divorce issues and resolve their differences. The goal here is to communicate effectively to try and reach an agreement both sides can accept. A mediator doesn’t make decisions for you but instead helps identify issues and possible solutions. 

Why avoid the courtroom?

Mediation has generally been a less expensive and faster way to reach an agreement or resolve a family law dispute. In light of the court closures, backlogs and delays caused by COVID-19, the time and cost savings associated with mediation are undeniable.

I recently scheduled a case conference on a non-urgent matter, and the next court date available was in August 2022. Most cases don’t involve an urgent matter, so waiting for 10 months or longer to get a child or spousal support order is not sustainable for most clients. 

It’s not only the time but there’s also the cost. For example, bringing a motion can start at $5,000 and run upwards of $20,000 — and that’s typically one day in court where a judge will decide on one issue temporarily. That’s a lot of money to determine if and how much child support someone should be paying or to decide an interim parenting arrangement that is likely to change as the children get older.

Even if litigation is ongoing, couples always have the opportunity to deal with some issues outside of court for a fraction of the cost. Clients sometimes think that once they start litigation, everything else is off the table. But it’s not an all-or-nothing proposition. If you’re in litigation and mediate even one issue, that’s one less issue for a judge to decide. Incorporating mediation into your litigation will have enormous time and cost savings. 

Another important benefit of mediation is that it can preserve relationships, which is particularly important when there are children involved. Affidavit and court applications lend themselves to listing negative things about the other person and make it harder to have an ongoing co-parenting relationship. 

Courts are not designed to deal with issues in the customized way mediation does. Generally, a court is meant to give broad orders — for example, what days of the week a child will stay with each parent. With mediation, there is a chance to be more specific and fine-tune the parenting plan, including setting clear boundaries around communication or the day-to-day care of your children. The more detail in the agreement, the less likely there will be conflicts in the future. 

Is mediation for everyone?

By legislating lawyers to discuss the family dispute resolution process, the federal government is signalling that court should be a last resort and only used when ADR isn’t appropriate.

When I first meet with a client, I determine if there are any urgent issues, and then we explore if there’s an interest in mediation. As an experienced family mediator, I know first-hand how well the process works, but both parties must be willing to compromise.

Although it might not be appropriate in some family violence cases, mediation can work for high-conflict situations or relationships with a power imbalance. The process can work effectively and safely because of the ability to design a mediation that addresses the power dynamics. 

One way to do that is through shuttle mediation, where you and your former partner do not need to be in the same room or even on the same Zoom screen. Essentially the mediator shuttles back and forth between parties, so there’s no need to meet or discuss issues face-to-face. This method may even deescalate conflict because the louder person can’t dominate the conversation or bulldoze the quieter spouse. 

We’re about 7 months into the Divorce Act changes, so it will be interesting to see if more clients are open to mediating and settling their family law cases out of the courtroom. If you would like to schedule a consultation to discuss if an ADR approach suits your unique family circumstances, please contact me.

Sharing parenting time and decision-making responsibility for children can be incredibly challenging when a couple divorces. That’s why it’s so important to sit down with your lawyer or mediator and create a detailed parenting plan because it puts down on paper exactly what’s expected of each parent. It looks at the children’s current and future needs and provides ways to minimize potential conflict between parents.

The main points of a parenting plan involve the children’s health care, education, religion, and extracurricular activities. It can also cover daily routines, methods of discipline, childcare, potential changes to the schedule, and even travelling with the children outside the country.

The plan lays out the actual parenting schedule: where the children will reside, what their day-to-day schedule will be, and where they will be on holidays. A plan can be either fixed or flexible, depending on what will work best for the family. The advantage of a fixed schedule is that it minimizes conflict between the parents, but for those who have a good working relationship, a flexible schedule may be the better choice for the entire family.

A schedule includes a plan for long weekends and holidays, including the two weeks off at Christmas, the week of March Break, and summer vacation. In some calendar years, one parent can end up with most of the long weekends, so some parents like to specify which parent will get the children on each long weekend. There can be a different schedule for the summer months. From September to June the children are in school and have a stricter routine but in July and August, it may make sense to change the parenting schedule.

Reaching an impasse

I always tell clients that they are free to deviate from the parenting plan but if they reach an impasse and can’t agree on something, at least they have something to fall back on that’s as close to black and white as possible. If an issue crops up where one parent is looking to take the children for a long weekend, for example, and the other parent doesn’t agree, they can fall back on what’s written in the plan.

The overriding principle of a parenting plan is that it should be tailored to the best interests of the children. One standard rotation plan for parents with 50-50 arrangements is to have the children with one parent two days on, two days off, five days on, then five days off. Another that works better for some is one week on, one week off. But, for example, if a parent works the night shift, it doesn’t make sense for the children to be there overnight, so in that case, the parent must find other pockets of time to care for them.

The plan should also lay out how the parents will communicate with each other about various issues. Is it best to talk face-to-face, by video chat or by phone, use email, texts, or use a notebook that goes back and forth with the children? Is there a specific time to communicate with each other? How will they contact each other in case of an emergency?

Other issues to think about include dealing with pick-ups and drop-offs, how the children will be able to spend time with their friends, and how their clothing and other belongings will be arranged for and purchased. How will decisions about school be handled? Will both parents attend parent-teacher meetings? Who is the school’s emergency contact person?

Details matter

With such a wide variety of things to deal with, those who put a parenting plan in place on their own sometimes make the mistake of not making it detailed enough.

If issues aren’t clearly thought out in advance with the help of a lawyer or mediator, they can cause conflict later. Parents have the chance to tailor it to work for the entire family, which is not something you’re likely to get if you ask a judge to decide the issues for you. The court is not designed to provide the level of detail required in a comprehensive parenting plan.

Some clients insist that they’re getting along just fine with the other parent, who lets them see the children whenever they want. But I always stress that they should write out a plan anyway. They can put it in a drawer and not look at it if their relationship continues to be good, but if there’s a disagreement they can always revert to the plan.

It may not be possible to anticipate all the potential issues that may crop up, but a solid parenting plan can go a long way to minimize future problems and ensure that your children’s best interests are taken into account.

If you would like to schedule a consultation to discuss how a parenting plan can help your family move forward following separation or divorce, I would be happy to help you.

For most couples, the matrimonial home represents their largest asset and it is a place of emotional significance – filled with both positive and negative memories.

A matrimonial home is not simply the house in which a married couple lives. In Ontario, it is afforded special treatment under the Family Law Act.

Let’s have look at why the matrimonial home is such a hot topic during a separation or divorce:

#1 Spousal Consent is Always Required

Neither spouse is permitted to sell, mortgage or otherwise, encumber the matrimonial home without the other spouse’s knowledge and consent – be it during a marriage or post-separation, even if only one spouse’s name is on the title. 

If you and your spouse cannot agree on what to do with the matrimonial home, one party may apply to the court and request an order for partition and sale.  

If your name is not on the title and you fear that your spouse will try to sell it without your consent, you can ask a lawyer to designate the home as your matrimonial home and register that designation with the land registry office. This will prevent the home from being sold unless both spouses consent to the sale.

#2 The Court Can’t Force You to Sell the House to Your Spouse

In a situation where the matrimonial home is owned jointly, neither spouse has to sell their share to the other.  Remember that at some point the court may get involved but the judge can only order that the house be sold. 

Hence, do not waste money and time looking for a lawyer to “force” your spouse to sell you their share. The money is better spent on the down payment for a new home.

#3 You May Not Get Access to Funds Even After the Home Is Sold

Remember that the proceeds from the sale of the matrimonial home will be held in trust unless you and your spouse agree on how these funds will be divided or until there is a final separation agreement or court order in place.  

The reality is that you may not have access to the funds from your home until months after it sells – plan for this and speak with your lawyer before purchasing a new property.  

#4 Your Spouse Can’t Change the Locks

Under the Family Law Act, the matrimonial home is afforded special status and both spouses are equally entitled to stay in the home, regardless of who owns it.

There are, however, exceptions to this rule and it may be worth speaking to a family law lawyer to find out if you qualify for an order requiring the other spouse to vacate the matrimonial home.

#5 Leaving the home is OK, but…

You do not lose your right to the matrimonial home even if you move out before the divorce is finalized. However, leaving before a separation agreement is in place may negatively impact parenting arrangements.  If you have kids, we suggest that you consider staying in the home until a temporary parenting arrangement is in place – provided it is safe to do so. 

Also, remember that even if you leave, you may still have to contribute towards the carrying costs such as mortgage payments, property tax and insurance.

The Role of the Real Estate Agent

Selling a home doesn’t have to be complicated. Consider getting in touch with a real estate agent who you and your spouse both trust.

An experienced real estate agent can act as a neutral facilitator and assist the parties with the amicable sale of their property and avoid unnecessary disputes and associated legal fees. Feuding couples often agree to follow the recommendations of their real estate agents in order to avoid arguing over issues such as listing prices, staging costs and repairs as fighting over these issues will only delay the process and cost you more money.    

Until recently, I thought MySupportCalculator.ca (“MSC”) was a government initiative designed to increase access to justice. In fact, this tool was developed by Divorcemate Software Inc. (“DivorceMate”) and is Canada’s only accurate online child & spousal support calculator.  It allows individuals to tap into a simplified version of the software relied on by lawyers and judges across the country. 

I recently approached MSC about a sponsorship for my podcast, Dealing with Divorce.  In speaking with one of the project managers, Faith Feldman, I learned that they receive a ton of enquiries not only about their software but family law in general.  We collaborated to answer some of MSC’s most frequently asked questions.

1. What if I have questions about my calculation or my case but I can’t afford a lawyer? 

Although the software is very user friendly and utilizes the same calculation engine relied on by lawyers and judges, it is still recommended that everyone obtain legal advice with respect to their family law situation.  

There are a number of ways to access free and/or affordable legal advice.  

Many family lawyers provide unbundled legal services where they can advise you on particular parts of your case for a flat fee. Don’t be afraid to ask. You can find a list of family law professionals on MySupportCalculator.ca, many of whom offer these types of unbundled services.

You can also try:

• Legal Aid Ontario which provides legal assistance for low-income people
• ASC Toronto provides family lawyers who can provide summary legal advice at a reduced rate
• Justicenet is a not-for-profit service helping people in need of legal expertise, whose income is too high to access Legal Aid and too low to afford standard legal fees

2. Does this calculator work for all the provinces?

In Canada, the Federal Child Support Guidelines govern child support for married couples.  For non-married couples, every province and territory has either adopted the Child Support Guidelines or has a counterpart, which essentially mirrors this legislation.  

MSC works for all provinces and territories except for Quebec, and ensures that the support calculated is based on the guidelines applicable to your particular province and situation.  

3. Is child support based on last year’s income?

A person’s annual income for child support purposes, is determined using the income set out in Line 150 of the payor’s T1 General or Notice of Assessment.  Depending on the situation, child support is based on the payor’s last year’s income or his/her current income. In some cases, child support is based on the payor’s income over the last three years.  

4. When completing a calculation it gives 3 scenarios for the amount; low, mid and high. How do I know where I fall on that spectrum?

Before you can determine where you fall on the spectrum, you first need to determine whether there is entitlement to spousal support under the law.  There is no point in calculating spousal support amounts if there is no legal requirement to pay it.  It is highly recommended that you obtain independent legal advice at this stage of the analysis. 

MSC provides low, mid and high points for spousal support based on the Spousal Support Advisory Guidelines (SSAGs).  The SSAGs are guidelines, not law; however, they generally form the basis for judges’ decisions.  

Choosing a location within the range requires a thoughtful analysis and should be discussed with a lawyer.  Below is a non-exhaustive list of factors to assist in determining where you might fall within the range: 

• Strength of any compensatory claim
• Recipient’s needs
• Age, number, needs and standard of living of children
• Needs and ability of payor to pay
• Work incentives for payor
• Property division and debt
• Incentive for self-sufficiency

5. How do I know how long I have to pay spousal support for?

MSC and the SSAGs use different formulas to provide a range for the duration of support. 

Using the “Without child support formula”, duration ranges from 0.5 to 1 year of support for each year of marriage.  However, support will be considered indefinite, meaning that no duration is specified, if the marriage is 20 years or longer. 

When using the “With child support formula”, there are two tests for duration – the length-of-marriage test and the age-of-children test.  The SSAGs apply the longer duration of the two tests.  

6. Does the calculator consider benefits and credits in the calculation?

MSC automatically considers the benefits and credits applicable to the specific situation. For example, the Canada Child Benefit will automatically be considered if you select children in your calculation. Certain benefits and credits will only be applicable in more complex situations handled by MSC Advantage, the enhanced version of MSC. 

7. Why do I get a different number when I calculate spousal support alone versus when I calculate spousal and child support together?

The “Without child support formula” applies in cases where there are no dependent children and therefore no child support obligations.  Practically speaking, if a payor is obligated to pay child support, they will likely have a reduced ability to pay spousal support.  The formula for spousal support therefore differs depending on whether there are children.  The formula must take into account the payment of child support as it is prioritized over spousal support.  When using the same income, the “With child support formula” will typically generate lower ranges for spousal support than the “Without child support formula”.  

8. I see you use DivorceMate software and I was wondering if MSC Advantage shows the same detailed calculations that DivorceMate does?

Since MSC uses the DivorceMate calculation engine, when you input the exact same information into both programs, they will provide the exact same child support and spousal support results. However, there are detailed results provided with DivorceMate Software that are only available to legal professionals. 

9. At what age does child support stop? My child is over 18 and attending university/college full time. 

Contrary to popular belief, child support does not automatically end at the age of 18.  Although 18 is the legal age of majority in most provinces, support can continue well beyond that age if a child is still a dependent.

Both the Divorce Act (which applies to married parents) and the Family Law Act (which applies to unmarried parents in Ontario) require payors to pay support for children that are under the age of majority or over the age of majority and enrolled in a full-time program of education.  Other reasons such as illness or disability may also entitle a child to receive child support over and above their 18^th birthday.   

In 2020, the issue of whether children should attend in-person learning was likely one of the most litigated matters in family court. Many parents brought urgent motions dealing with this issue. Now that COVID-19 vaccines are available for children ages 12 and older, it is anticipated that separated parents will grapple with yet another critical issue: whether to vaccinate their children against COVID-19.

Whether or not to have your child vaccinated is usually up to the parents. When parents are together, they must make this decision together. When parents are separated, the hope is that they continue to make this decision together, but what if they cannot agree?

Whether or not to vaccinate a child can put a huge strain on a co-parenting relationship.

If one parent has sole decision-making responsibility, deciding whether to vaccinate the child is ultimately the decision of that parent. If the parents have joint decision-making responsibility, they will have to make those decisions together or start a court application so that a family court judge can decide.

Unlike the school issue, the issue of vaccines is not new to family law. The Court often encourages parents to seek the assistance of expert third parties when unable to agree on major medical decisions, including those regarding vaccinations. In reviewing the case law, I have found only one decision that ruled against vaccinating a child – this was an arbitration case where the mother argued that the children had underlying medical conditions that made them at risk for side effects from vaccines. The arbitrator ruled in favour of the mother and ordered that the children should not be vaccinated. The father then appealed the arbitrator’s decision and won his appeal.

Both the Canadian and Ontario Health Policies favor vaccinating children and youth. The Immunization of School Pupils Act requires children to be vaccinated, unless the parent has filed for an exemption claiming religious beliefs or as a matter of conscience. Even the exemption allowance can be overridden by a medical officer of health, if necessary. An override could occur if there are reasonable grounds that there is an outbreak, or an immediate outbreak risk of a designated disease, at the location the unvaccinated child attends.

It is important to note that parental views on vaccinations are not determinative of decision-making responsibility or parenting time with a child. The legal test for decision making responsibility and parenting time is always what is in the child’s best interest. In most cases, if there is a disagreement on the issue of vaccines, the parent who favors vaccinations will likely be given final decisions on medical issues but not necessarily sole decision-making responsibility on all issues.

Below are some tips for separated parents who disagree about the COVID-19 vaccine:

• Consult with your child’s pediatrician and attempt to resolve the issue with their advice and guidance.
• Consider working with an accredited mediator who can help you work out a solution without going to court.
• Speak to your child about the issue and explore all options: what are the possible side effects? Does the child require the vaccine to attend school, sports, or other activities?
• Consult with a family law lawyer who can provide advice on your likelihood of success if the matter is litigated.

Many people think of marriage contracts – or prenuptial agreements – as juicy bits of gossip about the rich and famous.

In reality, though, the use of such agreements has risen dramatically in recent years by couples across the economic spectrum.

The increase in the use of prenups (marriage contracts) throughout North America was chronicled by a recent U.S. survey that showed a 62 percent jump in the number of marriage contracts. The trend is seen here in Canada as well.

Rather than sowing the seeds of doubt about the strength of a relationship, most couples who use a marriage contract say it provides them with a sense of security: a roadmap of sorts that leaves nothing to chance if the relationship sours or ends naturally.

When a Marriage Contract Makes Good Sense

Millennials lead the dramatic rise in the use of marriage contracts – those newlyweds between ages 18 to 35 – who are marrying later in life and want to protect their assets. There is, however, a host of other reasons for why a marriage contract makes perfect sense for couples of any age.

1. You can ensure the concerns of your children from a previous marriage are protected. With a marriage contract, you can make sure that assets intended for your children are shielded in the event of a divorce.
2. Your assets are protected if you’re remarrying. Your financial and legal situation is likely different than your first marriage. For example, you may have children; own a residence and other assets of significance. A marriage contract can ensure the distribution of assets as you wish if there’s a divorce or death of either spouse.
3. Protection of property owned before the marriage. Things can get sticky when it comes to how the matrimonial home is divided after a separation. Without a marriage contract, you will have to share the value of the home with your spouse– even if the house or property is solely in your name and even if you owned it prior to the marriage. By having a marriage contract, you can establish how the value of the matrimonial home will be shared, if at all.
4. Retirement planning. Even for the most frugal among us, divorce has the potential to be financially devastating. Remember, anything of value (stocks, property, etc.) you acquire during your marriage is subject to being distributed equally with your spouse if you divorce.With a marriage contract, though, you can specify which assets will be split and equalized in the event of a separation and which will be excluded. Remember, a marriage contract not only protects the assets an individual has going into a marriage, it can also protect assets a person might acquire during the marriage.  A marriage contract can also lay down the ground rules for concerns like spousal support, which is just one reason why many individuals are considering marriage contracts these days.

The Key Takeaway

The purpose of a marriage contract is not to court disaster for your marriage. Instead, it’s to give you and your spouse a sense of security in an uncertain world.

We realize that even broaching the subject of a marriage contract with your spouse or partner can be intimidating.  An accredited family law mediator is especially helpful during the negotiation and discussion phases. They can often resolve issues quickly and at reasonable cost.   A mediator is trained to help both parties reach an agreement without taking sides and can help both parties see things from the other’s viewpoint.

If you are unclear whether you need a marriage contract or for help with any questions relating to marriage contracts, get in touch with me, Darlene Rites, at Ferreira & Bettencourt, LLP. You can reach me by phone at (416) 536-4445 or via email darlene@bettencourtllp.com

Being legally required to provide spousal support is often one of the most contentious parts of a divorce or separation.

What happens, though, if your former spouse’s income changes significantly after your divorce or separation? Is your support based on the new income level or on the previous level?

First, let’s review how spousal support is calculated in Ontario.

How Spousal Support is Calculated in OntarioOnce the issue of entitlement has been addressed, the Spousal Support Advisory Guidelines serve as a starting point for determining the amount of spousal support to be paid by the payor. There are different calculations for couples or partners with children, and for those with no children.

Factors that are taken into consideration include:

• Length of the relationship
• Income and age of both partners
• Current and potential earning power of both parties
• Roles of each partner during the relationship (for example, whether one was the primary breadwinner or primary caregiver)
• Whether either party is leaving the relationship in a worse financial situation than the other.

Again, the Guidelines serve as merely a guide to determine a fair support requirement based on the uniqueness of your relationship.

While there are online spousal and child support calculators available, they serve as only an estimate for how much you could expect to pay or receive. A judge ultimately has the authority to order more or less support than what the guidelines recommend.

Bear in mind that spousal support can be required permanently or for a limited amount of time until the spouse receiving it is in a better position to support themselves. You can expect support amounts to be higher and paid over a longer duration where there is a large difference between the spouse’s incomes, the spouses lived together for a long time and/or there are children from the relationship.

What if a Payor’s Income Increases after Separation?

If the person paying spousal support receives an income increase post-separation, it’s generally left to the court to decide whether spousal support will be based on the new income or on the payor’s income during the relationship and/or at the time of separation.

Listed below are general guidelines the court will follow in reaching a decision on whether to use the payor’s post-separation income.

• Was it a lengthy relationship? The use of a payor’s post-separation increase in income is more likely in longer relationships where parties’ personal and financial affairs became completely integrated.
• Were the skills and credentials that led to the post-separation income increased obtained and developed during the relationship?
• Did the recipient contribute to the post-separation increase to the payor’s income? For example, did the person receiving the support put his or her career on hold, while the payor earned the skills and credentials to get the increase?

COVID-19 and Post-Separation Increases in Income

With over one million Canadians put out of work due to the COVID-19 pandemic, it’s expected that many will eventually see a rise in income. If you’re in the process of settling your divorce or separation and are basing it on today’s income levels, the steps you take now can prevent legal obstacles when income levels begin to rise.

Take into account the following strategies when settling issues of spousal support during the pandemic:

• Consider a temporary agreement that will stay in place until both parties’ post- COVID-19 incomes can be accurately assessed.
• Include language that calls for an automatic review of both parties’ income at a specified date in the future. This will protect both the payor and the recipient.
• Come to a mutual agreement about what constitutes a “material change in circumstances.” In order to vary an existing spousal support order, the party seeking the change must prove that there has been a material change in circumstance, namely, a change that would likely have resulted in a different order. Typically, the change cannot have been something that was contemplated by the parties unless the spouses explicitly define that in the agreement, which can assist them in reaching a settlement during these trying times.

Since the issue of spousal support is one that has the potential of affecting many aspects of your life, you should seek the help of an Ontario family law lawyer who can guide you through the process. With the right representation, you’ll be legally protected on all fronts.

Divorced or separated parents who are receiving child support are supposed to receive income information from their former spouse each year. That’s according to the Sec. 24.1 of the Child Support Guidelines.

The reasoning behind this law is to assess whether an increase or a decrease in child support is warranted. Children need the financial support of both parents and are legally entitled to this support after a separation or a divorce.

Because some custodial parents run into obstacles with either receiving the yearly income information itself or getting a new separation agreement in place, the Government of Ontario has created an alternative way.

Online Portal for Updating Child Support
With Ontario’s Online Child Support Portal, divorced parents can now enter their income information online to either set up or change their current child support arrangements based on the Child Support Guidelines.

This online service streamlines the process for parents to get the support they are owed. Using this portal saves both parents time and money that would be eaten up by doing things the old way.

Here’s how it works:

1. As soon as either parent registers or makes an update to the child support agreement through the portal, the other parent is notified.
2. The other parent then has 25 days to respond.
3. Both parents are required to allow the Canadian Revenue Agency (CRA) to share their tax information with the service in order to get the most accurate financial information from the parents,
4. Once the service has the information, any necessary adjustments will be made and then enforced as a court order. The document produced by the service is referred to as a “Notice of Calculation or Recalculation” depending on whether it is your first time using the service.

While the Online Child Support Portal is an effective and efficient service for both parents, it has a few shortfalls:

1. It does not address situations with shared parenting arrangements.
2. If either parent refuses to use the online portal, the other parent will need to go through the traditional court process to obtain a new order.
3. The service is only effective if both parents reside in Ontario.
4. The service does not apply if the payor is self-employed and/or earns more than $150,000 per year. Only parents who are T4 earners can participate.

Steps to Take If the Online Portal Is Not an Option for You
If you’re unable to use the online portal to change or update your child support arrangements, you have two options:

1. Make a new agreement with the other parent. If both of you can agree on the terms, then you’re able to enter into a new agreement on your own. Keep in mind that in order for it to be valid, the agreement must be dated, signed by both parents and witnessed. You should also have the agreement reviewed by a family law lawyer.
2. Get a court order. If you’re unable to reach an agreement on your own, then either parent can file a court application or a motion to change the current order. Keep in mind that a court can make changes to an existing child support order only if there has been a material change in circumstance, for example,  a change in the payor’s income, an adjustment to the needs of the child, a change in the child’s living arrangements, etc.)

Increased Enforcement of Child Support Orders coming in July 2020 March 2021 (reforms postponed due to COVID-19)The enforcement of Bill C-78 will begin on March 1, 2021. The scope of operations for local support calculation and enforcement agencies will be significantly increased due to sweeping changes made to the Family Orders and Agreements Enforcement Assistance Act (FOAEAA),

Here are some of the most important changes on the horizon:

• The federal government will be able to release either parent’s income information – including information from tax returns – to a court on a confidential basis for establishing, changing, or enforcing support orders. It will also be able to increase the number of provincial family justice organizations that can request the release of such information.
• The ability to garnish wages will be strengthened by making sure that any family support debt takes priority over commercial debt. This action ensures that the child’s needs for well-being are taken care of before other debt obligations.

If you have any other questions relating to child support, changes to child support or the enforcement of child support orders, please do not hesitate to reach out to Darlene Rites at Ferreira & Bettencourt, LLP for more information at darlene@bettencourtllp.com or 416-536-4445.

Despite being the most preventable homicide, a woman is killed by her intimate partner every 6 days in Canada.[1] About 100,000 Canadians are subject to partner violence and contemplate leaving an abusive relationship every year.

Education and early intervention are key to preventing intimate partner violence.  However, when these strategies have failed, it is essential to support and empower survivors in order to increase safety and lessen harm.

What Is Domestic Violence?

• Hurting or threatening to hurt you, or those you care about.
• Engaging in violence, including hitting, kicking, punching, pushing, choking, or physical assault, against you.

• Criticizing or blaming you for everything that goes wrong in a relationship or life.
• Trying to humiliate you before others.
• Restraining your access to money.
• Off-putting you from the decision-making in the relationship.
• Limiting your freedom, time, or actions.
• Harassing you or putting you down that results in you are suffering emotional disturbance.
• Destroying property you own.
• Being cruel toward your pets.
• Intimidating with force/violence or threat of suicide.
• Forcing you to have sex against your will.

Intimate partner violence accounts for a fourth of all police-reported violent crimes in Canada.

If you are in immediate danger:

• Call 911.
• Contact a shelter if you do not have a safe place to go.
• Call a helpline.
• If you can, take important documents and essential personal belongings with you.

Why It’s So Hard To Leave An Abusive Relationship

Leaving an abusive relationship is incredibly difficult for a variety of reasons. Any attempt to escape the relationship is sure to change the course of your life completely. Apart from safety, there are other factors that make leaving an abusive relationship challenging for a survivor. Sarah Buel, a lawyer and clinical professor of law  has compiled a list of 50 reasons why survivors stay with their abusers. These range from influence of the abuser to pressure from the children or denial.

Research shows that a woman makes seven attempts on average to leave an abusive relationship before calling it off permanently. This highlights the uncertainty on victims’ part and underscores the need for planning when trying to escape an abusive relationship.

Tips for Leaving an Abusive Relationship

Planning is critical for women trying to escape abusive relationships. It can significantly reduce risks involved, minimize emotional upheaval, and facilitates a smooth transition. Here are some tips to consider when making the decision to end an abusive relationship

1. Reconnect with friends and family

Isolation is a powerful tactic used by abusive and controlling partners.  Oftentimes, victims of abuse have been isolated from friends or family, leaving them with little to no support network. When planning a separation, it is important to reestablish or create a support network.  This support network will be critical in getting you out of the relationship and back on your feet.  Women who have a social support system are also more likely to leave as leaving without one can be daunting. A support network does not only consist of family members or close friends.  You can build a circle of support with the help of a lawyer, doctor, colleague or counsellor.  Having a support network will also make you feel less financial and emotionally trapped.

2. Seek Out and Accept support

Speaking to a counselor at a shelter or legal clinic will make leaving an abusive relationship easier. They will connect you with the resources you need to devise a safety plan, arrange for housing, apply for work, or other support services. For example, the Province of Ontario gives victims of spousal abuse priority status on their subsidized housing applications if the application is made within 3 months of the separation.  Most people do not know this and they may stay on a friend’s couch for 6 months before seeking help.  Counsellors are trained to provide support services to victims of violence and are well positioned to connect you to specialized services in your community.  Take advantage of their wealth of knowledge!

Here is a list of additional resources in Canada and Toronto for victims of domestic violence.

3. Get Legal Advice

Get in touch with a family law lawyer to discuss your legal rights following a separation.  Even a short consultation with a lawyer who is familiar with domestic violence can provide you with legal advice, assist with safety planning and set you on the right path. If you are financially dependent on your abuser and worry about being able to support yourself and/or your children on your own, a family law lawyer will be able to provide you with legal advice regarding issues of support and property division.  They will tell you whether you are entitled to receive child support or spousal support and whether you can expect to receive any money from your home or your spouse’s pension.

How to Obtain Affordable and Accessible Legal Advice

The information you receive from your lawyer will assist you in planning and budgeting accordingly.

If you can afford a lawyer, great.  If you cannot afford to retain a lawyer, there are many resources to assist you in obtaining legal advice.

1. Legal Aid Ontario offers two hours of free legal advice for victims of domestic violence. This service is offered through various legal clinics. You can also call Legal Aid Ontario directly at 1-800-668-8258.
2. There are family lawyers, who provide unbundled services or work on limited scope retainers. You can retain them to provide a legal opinion, prepare a court application or coach you if your only option is to represent yourself.
3. Justice Net has a list of family lawyers, who provide services on a sliding-scale based on your income.
4. Many lawyers also offer services for a deferred fee. They may permit you to pay them once you get money from the sale of shared assets, such as a matrimonial home.

The Importance of Making A Safety Plan

• Consider where you will live immediately following the separation, whether it means renting an apartment, staying with a friend or in a shelter.
• Keeping an alternate cell phone nearby or memorizing the number of your close friend or a shelter.
• Keep important documents (or copies of important documents) with a friend or on a pen drive. If you must leave in a hurry, try to take these documents with you.
• Open a separate bank account and start putting money aside. It will be easier to leave if you have enough money to survive on your own for at least a month or two. Even if you are entitled to child and spousal support, it may take several months to obtain a court order and even longer to have that order enforced by the Family Responsibility Office.  Assume you will not receive any sort of support for at least 6 months.
• Start speaking with a therapist as soon as possible as this support will start getting you emotionally ready for the change.
• Consult with a family law lawyer so that you can learn about your rights. Knowing whether you are entitled to support, or an equalization payment will be critical when developing your exist strategy. A family lawyer can also assist you in determining whether you can apply for a restraining order or whether your situation would be considered urgent to the court, warranting an emergency court application.
• Plan to actually leave your home when your partner is out of town or you know they will not come home while you are in the process of leaving.

You Made the Decision to Leave with your Children, Now What?

In Ontario, both parents have an equal legal right to custody of their children when a relationship ends.  No parent has a greater legal right, even if they did most of the childcare and even if the other parent was abusive towards the other spouse. If you decide to leave and take your children with you, your partner might try to accuse you of abducting the children. Therefore, it is crucial to speak with a lawyer prior to leaving.

Once you have left, it is important that someone (could be you, a friend or a lawyer), notify your spouse that the children are safe and that you would like to discuss the issues of custody and access.  If you have retained a lawyer, a lawyer may be able to negotiate a temporary arrangement for custody and access.  If you are not represented by a lawyer and it is not safe to communicate with your spouse, your only option may be to commence a court application or mediation with an accredited mediator that can properly screen and put safety precautions in place.

Failure to notify your spouse as to the whereabouts or safety of your children will likely encourage them to start their own urgent family court application and may unnecessarily escalate the conflict.

Finding A Shelter

As a family lawyer in Toronto, I have represented many women who have left abusive relationships.   Many of them were unemployed, with young children, and financially dependent on their spouses.  Despite their dire need for support, many of them cringed at the thought of staying in a shelter.

Although I do not know what it is like to live in a shelter, I can attest to the positive ways in which they have assisted my clients.

Shelters do not only provide housing.  They provide support to women escaping abusive relationships and help them rebuild their lives again.  One of my clients underwent a major transformation after her stay at such a shelter.

After meeting with me for a family law consultation, a young mother decided to contact a shelter.  She was unemployed, had no savings, had not finished high school, had no family in Toronto and had just left her abusive boyfriend with her toddler son. A few months later, she enrolled in a college program and was able to secure a subsidized spot for her toddler in daycare. In under a year, she got a part-time job earning minimum wage and shortly thereafter was able to move into an apartment on her own.  This woman is now completely self-sufficient, and her son is now school aged.  She gives all credit of her turn around to the shelter.  Had it not been there, she may have felt compelled to stay with her abusive partner.  I continue to be inspired by her story and the remarkable way in which the shelter empowered her to change the course of her life.

Men in An Abusive Relationship

Although the majority of victims of partner violence are women, men are also subject to abuse in both heterosexual and same-sex relationships. Abused men often face different obstacles, including a shortage of community resources and a lack of support from family and friends. The information above applies to men as well but here is a list of resources specifically targeted towards men experiencing domestic violence.

[1] https://bc-counsellors.org/wp-content/uploads/2017/07/The-Most-Preventable-Homicide-Carolyn-Camilleri-Spring-2017.pdf

The bond between a pet and its family is similar to that of a child and its parents.  Following a divorce or separation, pets deserve to have their best interest considered when deciding who will care for them.  Legally speaking, however, the courts do not see pets in a similar light, classifying them instead as personal property that should be divided like the family home or furniture.

Factors in Considering Ownership Rights of a Pet

Consistent with the factors of property ownership, courts will often determine pet ownership based on factors that surround the history of the pet’s ownership.  These factors can include the following:

1. Was the pet brought into the relationship by one party, or was it jointly brought in during the relationship?
2. Was the pet a gift from one party to the other?
3. Did either party surrender possession rights when they left the marital home?
4. Is there evidence to support one spouse’s ownership of the pet? This can include receipts, bank statements, a breeder’s certificate, a city license or being listed as the owner at a vet’s office.

As this list of factors shows, the primary determining criteria for a family pet surrounds the animal’s ownership history. Although there may be other considerations, Ontario family courts have consistently found that they cannot expand the law of pet custody beyond that of possessory rights to property.

Is There Any Legal Precedent to Have A Court Rule on Pet Custody?

Ontario Courts do not have jurisdiction to make custody and access orders for pets.  In rare cases, courts have made decisions concerning pets based on what is in a child’s best interest.  For example, has the child bonded with the pet, and is it in the child’s best interest for the pet to continue residing with his or her primary caregiver?

The first Court of Appeal decision in Ontario to discuss pet ownership stressed the practicality of the court’s time and resources when it comes to making decisions about pet ownership. Warnica v. Gering involved a claim for custody of a pet dog named Tuxedo.  In this case, Chris claimed that Allison had gifted him the dog.  Allison denied that the dog was a gift and claimed to have purchased Tuxedo as a companion for herself.  The Court dismissed Chris’s claim since it found that his involvement with the dog was totally dependent upon his relationship with Allison.  The court did not consider the fact that Chris had spent money on dog food or time caring for the dog relevant to who owned Tuxedo.  Even though this particular Judge was sympathetic to the sensitive and emotional issues involved, Justice Timms (decision upheld by the Ontario Court of Appeal) made it clear that there is a limit to the time and resources that a family court is willing to devote to the resolution of a dispute over a family pet.

One case does stand out regarding ownership, which was determined in the 2007 decision of Grimalyuk v. Concelos.  In this case, the court determined that each party was entitled to joint ownership of their dog due to the relationship each party had established with the pet during the marriage.

Although the Grimalyuk decision may give pet owners some hope that the family court can step in to rule on pet custody, most decisions still follow the guidance of Warnica.

What Is the Best Course of Action to Determine Rights to A Pet?

If there is a dispute between the parties over pet care (or ownership) during the divorce or separation, there are two ways in which the matter can be resolved.

Request A Court Order on Ownership

If the parties are unable to agree, a judge can order that ownership of the pet be granted to one party. In making this determination, the judge will consider the factors described above as well as other relevant evidence that is presented. Although judges will be compelled to issue an order, consistent with the Warnica decision, they will likely not devote a significant amount of the hearing time in addressing this issue. You must come prepared to make your argument as efficiently as possible if you wish pet ownership to be a significant issue in the divorce litigation.

If you choose to go the litigation route, you must keep in mind that the judge will rule based on limited evidence and time. This reality can lead to unexpected outcomes that will result in a final order that will govern ownership of the pet for the remainder of their life.

Mediate the Dispute So an Agreement Similar to A Parenting Plan Can Be Negotiated

Another less contentious route to determine living arrangements for your pet is to work with an accredited family law mediator. During this process, the parties can negotiate a care plan for the pet that is similar to a custody and access agreement created for a minor child.

Through negotiations, an agreement can be reached that meets both parties’ needs and clearly defines where your beloved pets will live, who will care for them and who will pay for all the pet-related expenses.

Don’t Leave Custody of Your Pet Up to Chance

The law surrounding pet ownership can be challenging to comprehend and even more challenging to navigate. If you are involved in a divorce or separation where pet ownership is a significant issue, you must secure the right legal advice that considers all the factors that play a role in this area of law.

As a family law lawyer, accredited mediator and animal lover, Darlene Rites has the experience and compassion needed to ensure that access to your pet is not lost in the shuffle during stressful situations and trying times.  Attending mediation will increase the chances that your pet will enjoy ongoing contact with each spouse, despite the breakdown in your relationship.