Category: Procedure

When an individual hires a lawyer on a family law case, they will be asked to sign a retainer agreement. A retainer agreement sets out the parameters and terms of the relationship between the client and the firm. A retainer agreement is obligated to include specific terms outlined by the Law Society of Upper Canada. The contents of a retainer agreement include, but are not limited to outlining the specific expectations and goals, the nature of the services that the firm will provide, as well as any limitations on the scope of the case. In addition, the retainer agreement also encompasses the agreement of the client to pay the firm for the services that they are providing. It outlines the way in which a client will be charged for the matter, whether it is on an hourly basis or fixed-fee. It may also state how often the client in a family law case will receive a statement of account. The individual will also be asked to pay a “retainer fee,” which is a specific outlined amount of money paid up front to the law firm. The “retainer fee” acts as a deposit on account of future fees and services. The...

Every party has to make a decision as to their legal representation in a given legal matter. Every party has the option: To be represented by a lawyer; To be represented by a person or individual who is not a licensed lawyer, but who the court permits to represent the party regardless; or, To appear in court without a lawyer or any form of representation, and to represent themselves. In the event that a party passes away after a case has begun, and if it is necessary, the court is allowed to appoint the estate trustee to represent the party’s best interest. If the party did not previously have an estate trustee, then the court may allow for an individual who was previously approved by the party before he or she passed, to represent the party as long as they are considered to be an appropriate person to represent the party. In cases where children are involved, the court may authorize a lawyer to represent the child and the child’s interests. In other words, the court is able to authorize either a Children’s Lawyer or a Public Guardian and Trustee to represent the party. If a party decides to change lawyers...

Social networking has become an extremely common way for people to share the details of what is going on in their lives with the larger society. With that being said, a common question that has come to light is whether or not one can use information obtained from Facebook as evidence in court in a divorce case and a family law matter. It is clear that postings, photos, and friends lists can be used as evidence in family related litigation matters. Facebook can be used to re-open a case if it brings to light new evidence that can cast doubt on previous evidence upon which the previous verdict was established. In addition, Facebook profiles have been used in order to draw conclusions on an individual’s character, judgment, and credibility. Therefore, it is evident that parties can and do use information obtained from Facebook as evidence in court, if the evidence being brought forth has merit and bearing on the matter at hand. It is important that you are cautious about the information displayed on Facebook as it relates to you, since this information can be used against you in the court of law.

It is common for couples to stay in touch with one another after separating for various reasons. For example, the parties that have separated may have children together and need to communicate on issues relating to those children. Sometimes, spouses may contact each other to talk about their separation and the circumstances surrounding being separated. Today, it is common for separated spouses to communicate through text messages, emails, Facebook, as well as other types of social media. Often times, separated spouses engage in disagreements through these forms of communication. It is easy for the parties to become upset and exchange a series of heated messages back and forth. It is important to be very careful with what you say to your spouse through these forms of communication. You must keep in mind that the messages sent through these methods of communication can be accessed by the Court, used by your lawyer to support your position, or by the opposing party to hurt your position. Clearly, if your spouse has sent you malicious, angry messages, you are within your rights to obtain a copy of those messages and present them to the Court in order to support your case. For more...

When getting a divorce in Ontario, it is often difficult to tell your lawyer all of the personal aspects of your marriage and your separation. Therefore, people are often reluctant to share certain information with their lawyer. It is important to remember that when getting a divorce in Ontario, the more informed your lawyer is and the more aware he or she is about all of the relevant aspects of the marriage, the more capable and prepared your lawyer will be to defend you and your case. With that being said, you are not obligated legally to disclose all of the details of your relationship to your lawyer; however, it is highly advised that you do so. Information that may otherwise seem meaningless and unusable to you may in fact become important once the case continues to unfold. As the case continues to progress, there is a possibility that if you do not disclose all of the relevant details of your relationship, that some of the details that were not disclosed may be used against you. It is in your best interest that your lawyer is well prepared to respond to the situation if it does surface. It is never...

When serving documents in Ontario with respect to a family law issue, there are two methods of service, being regular service while serving documents in Ontario, or special service while serving documents in Ontario. Selecting a method for serving documents in Ontario is to be done in accordance with Rule 6 of the Family Law Rules, outlined below. Using Regular service, there are five methods for serving documents in Ontario. They include: 1. Mailing a copy of the documentation to the individual's lawyer, or if they have yet to retain a lawyer, to them, personally; 2. Using a courier to send a copy of the documentation to the lawyer, or if they have yet to retain a lawyer, to them, personally; 3. Depositing a copy of the documentation at a document exchange in which the individual's lawyer is taking part of; 4. Faxing a copy of the documentation to the lawyer, or if they have yet to retain a lawyer, to them, personally; 5. To carry out special service. Carrying out a special service of a document can be carried out in one of four ways. 1. The first way is to leave a copy: (a) with the person to...

Within 10 days after being served with an Answer in a family law case, the Applicant(s) may serve and file a Reply, responding to claim(s) made in the Answer (Family Law Rules, Rule 10(6)). The Reply in a family law case should not be a regurgitation of the Application. It is an opportunity for Applicants to respond to any claim(s) in the Answer. The Applicant in a family law case may need an extension of time for serving and filing the Reply. An extension may be obtained in one of two ways: By acquiring the consent of opposing counsel in writing; or, By requesting this extension from the Court.

A family law case can begin in one of three places: In the municipality where one of the parties currently resides; If the matter is dealing with a subject pertaining to the children, for example custody, then the case is usually filed in the municipality where the child currently resides; or, The case can also begin in a municipality agreed upon by both parties, which has been accepted by the court of that municipality in advance. According to sections 21.8 and 21.11 of the Courts of Justice Act, a motion in a family law case may be heard in another municipality under the following circumstances: If there is a threat that the child will be removed from Ontario; or, If there is a threat of any danger in terms of the child’s health, safety, or well-being. However in these circumstances, once the party has had their motion in a family law case heard by the courts of the other municipality, the case will usually be transferred to a municipality that it should have been started in initially (unless the court in a family law case orders otherwise). If one attempts to file a family law case in the wrong municipality,...

When a matrimonial matter proceeds to trial, each lawyer representing the parties involved in the dispute, is tasked with gathering, presenting, and proving the evidence. There are two different types of evidence that lawyers bring forth at trial: documentary and oral. A lawyer attempting to convey oral evidence at trial will call witnesses with knowledge of the dispute. Opposing counsel may then cross-examine those “adverse witnesses.” The question is, who is considered an “adverse” witness? Is it merely those witnesses summoned by the opposing party? Do “adverse” witnesses need to be hostile to the opposing party or simply unfavorable? In the case of Reference Re R. v. Coffin, Justice Kellock took an outdated position and one inconsistent with today’s definition. Justice Kellock defined an adverse witness to be hostile; specifically, “not giving the evidence fairly and with a desire to tell the truth because of a hostile animus towards the prosecution.” Contrary to the former case, the Ontario Court of Appeal held in Wawanesa Mutual Insurance Co. v. Hanes, that a witness is adverse by simply being unfavorable. This has led Ontario courts to further expand on the scope of an “adverse” witness. Currently, an adverse witness encompasses a scenario...

A motion in family law is a procedural device that enables either party to bring an issue before a court for decision. In other words, when a party makes a request during a court case and before trial, asking the court for a decision or a ruling, that request being submitted to the court requires the requesting party to bring a motion. Both parties reserve the right to bring a motion to the courts at any time following the completion of the initial case conference. In situations of urgency or situations involving extenuating circumstances, a judge may make the decision to listen to a motion before the parties attend a case conference. The parties in a motion are referred to as the moving party and the responding party. The moving party is the person who is bringing the motion. The responding party is the individual receiving the motion, and responding to the demands of the moving party. The motion begins when the moving party serves the opposing party with a notice of motion. Upon receiving notice that the motion has been filed, the responding party is able to come up with their own position on the matter and evidence to support their position. The...