Legal Insights

An award of costs (where one party has to pay a portion of the other party's legal fees) in the context of a family law case is governed by Rule 24 of the Family Law Rules, as opposed to the Rules of Civil Procedure. Under the Family Law Rules,  the reasonableness of the parties in litigation is an extremely important consideration in the determination of costs. Under Rule 24, there is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. This means that there is a presumption that the unsuccessful party will have to pay a portion of the successful party’s legal fees. However, this presumption does not apply in a child protection case or to a party that is a government agency. Moreover and despite this presumption, a successful party who behaves unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs. In deciding whether a party has behaved reasonably or unreasonably, the court examines offers to settle. Courts are directed to award costs to a successful party where a party is more successful than his or...

When a final order is made in the Ontario Court of Justice, a party must serve a notice of appeal on the opposing side within 30 days of the order or decision being appealed. The notice of appeal must be filed in court within 10 days of it being served. If a temporary order is being appealed, the notice of appeal must be served with seven days of the temporary order. The name of a case in an appeal is the same as the name in the case in the order appealed from. The name of a case in an appeal identifies the parties as appellant and respondent. Appeals from the Ontario Court of Justice are heard by a judge of the Superior Court of Justice. Appeals from the Superior Court of Justice are heard by either the Court of Appeal or the Divisional Court, depending on whether the order being appealed is final or temporary, and the amount in issue. If the order being appealed is temporary, or if the order is final and the amount in issue is less than $50,000 then the appeal is heard by the Divisional Court. If the order being appealed is final and...

The following are a list of key terms that are used in family law cases in Ontario: Affidavit A written statement of fact that is sworn under oath as being the truth. A party or witness may sometimes file an affidavit as a way of giving evidence to the Court. Alternative Dispute Resolution Ways to settle disputes or differences without a Court trial, such as mediation or negotiation. Appeal After a judge has made a decision in a trial or hearing, if either party is not satisfied, they may be entitled to "appeal" the decision to a higher Court. This means asking a higher Court to review the decision and make changes if necessary. Applicant (in a divorce proceeding) A person who commences a divorce application. Application Filing an application is a way of asking the Court to make an order. An application states what type of order the person is seeking. Case Management Conference An informal meeting between a judge, parties or their counsel to discuss and to potentially resolve issues related to the management of Court proceedings. Certificate of Divorce The final document issued by the Court at the end of a divorce proceeding. Either party may apply...

The following is a continuation of the information found in Family Law Key Terms - Part I: Click here to see the list of Family Law Key Terms - Part I. Matrimonial Home The home in which the family habitually resided during the marriage. Either one or both spouses may own the matrimonial home, which can be assets such as a house, condominium, mobile home or trailer. Regardless of which spouse is the registered owner of the matrimonial home, each spouse has a one-half interest in the home and has the same right to use and reside in the home. Mediation Mediation is a type of alternative dispute resolution in which a trained, impartial mediator helps the parties reach agreements about issues such as custody and access and sometimes also about child support, spousal support, and the division of matrimonial assets and debts. Payee The person who receives child and/or spousal support. Payor The person who pays child and/or spousal support. Respondent A person against whom a legal action or application is brought. Separation Two people who are married to each other but who are living separate are considered separated in the eyes of the law. Separation Agreement A contract between two...

The continuing record in a Toronto family law case is the record made under Rule 9 of the Family Law Rules containing all the documents filed with the court in a case. The Applicant must serve the continuing record in a Toronto family law case on the other party involved in the case. The Applicant must then file an Affidavit of Service proving that the continuing record in the Toronto family law case was served on the other side. The continuing record includes an endorsements volume and documents volume. The endorsements volume will contain a cumulative table of contents, an endorsements section, and an orders section. The documents volume is comprised of all documents filed in the case, including the Application, Answer, Reply, Affidavits, Financial Statements, and Trial Management Conference Briefs. When preparing and maintaining a continuing record under Rule 9 of the Family Law Rules, the parties shall meet the requirements set out in the document entitled “Formal Requirements of the Continuing Record under the Family Law Rules”, dated July 1, 2006, published by the Family Rules Committee and available on the internet at the following URL: www.ontariocourtforms.on.ca. Instead of one single continuing record, the continuing record may be divided...

An individual starting a family law case files a document called an “Application.” This person is called the “applicant” and the opposing party(s) is called the “respondent(s).” There are different application forms, depending on the case. An application may contain a claim against more than one person and more than one claim against the same person. Applications require the applicant to set out the grounds for such claims. Once the application is filed, it is to be served immediately on every other party by “special service” which includes: leaving a copy with the respondent, leaving a copy with the respondent’s lawyer, mailing a copy to the respondent, or leaving a copy at the respondent’s residence with anyone who appears to be an adult and mailing a copy to the same address that or the following day. There are three options if the respondent cannot be served by way of special service. If the respondent is evading service, the lawyer of the applicant can apply for an order for substituted service. The applicant must show detailed evidence in their affidavit of the steps taken to locate the respondent along with proof that a substituted service can reasonably be expected to bring...