Category: Procedure

There are certain steps that one can take in order to best protect themselves in the event of a separation and divorce. The first step that one may take in order to protect themselves is to put personal financial papers, records, and items of value (such as jewelry) in a safe location. You may consider re-directing your mail and bank statements from the home to your place of work. In the event that your spouse has received mail from any financial institutions, and it is in plain sight, then it is suggested that you take note of the return address that is printed on the envelope. If your spouse leaves out any financial information, and it is in plain sight and accessible, it is suggested that you record the information that you see, and take note of it. In the event that you and your spouse share a joint account, then it is recommended that you consider closing the account in question. If you do not wish to do so, for whatever reason, then it is highly suggested that you closely monitor the account activity on a highly regular basis. In the event that you both have joint lines of credit...

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...

A concept in law that is (fortunately) uncommon to most, is that of rectification. Rectification is exactly what it sounds like. When parties have agreed to terms and have mutually settled their differences, they construct a contract agreement that conveys those terms. However, as infrequent as it may seem, errors and omissions do occur from time to time. The concept of rectification is present when one party argues that an error in the agreement was overseen, and the oversight is not what he/she had intended to agree upon. In Sylvan Lake Golf & Tennis Club Ltd v. Performance Industries Ltd., the leading case on the issue of rectification, Justice Stewart outlines the legal test that should be used when adjudicating such an issue. Justice Stewart reasons that: “. . .  If the other party ought to have known, that is sufficient. When the mistake was of such a character or in such circumstances that the defendant had good reason to know, or ought to have known, of the mistake and what was actually intended, this condition is satisfied. Even in the context of a unilateral mistake, when assessing whether a party knew or ought to have known of the other party's mistake,...

According to a case from the Ontario Superior Court of Justice, Satchidanthan v. Sivanesan, if the person being served resides in a jurisdiction that is a State party to the Convention, then service may well have to conform to the requirements of the Convention of the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. It ought to be noted that: The Convention does not apply where the address of the person being served is not known. According to the Convention, each contracting state must designate a central authority which will undertake to receive requests for service that originate from other contracting states. Requests for service must conform to a model that is provided for in (i.e. annexed to) the Convention itself. The following are examples of contracting States to this Convention: Albania, Argentina, Australia, Denmark, Finland, Germany, Greece, and Romania. For a complete list as well as a complete guide to country's reservations, declarations and notifications, visit the following website. Click on this link for more information on this Convention. To learn more about practical operation documents, click here. This Convention is becoming increasingly more significant, as based on the decision in Satchidanthan v. Sivanesan, it appears that...

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...

When the negotiation stage of a matrimonial matter has run its course, the parties will resort to a trial to determine their outstanding issues. At trial, it is not unusual for either one or both of the parties to call an expert witness to testify as to specific matters that require an expert opinion. For example, if there was a question as to the value of the matrimonial home or a specific property owned by one of the parties, an expert real estate valuator will be retained by one of the litigants and will testify as to the value of the property at a certain period. In Harmony Shipping Co. S.A. v. Saudi Europe Line Ltd., Justice Penny conveyed the three pinnacle guidelines that govern the law with respect to qualifying an expert. They are as follows: There is no property in a witness; Even though a party has retained an expert and communicated privileged information to the expert, the expert can still provide an opinion for an opposing party and may be called as a witness at trial; but, The expert may not be questioned concerning any privileged material he or she received from the opposing solicitor or disclose...

There are many reasons as to why you ought to hire a Toronto divorce lawyer. Some of these reasons are as follows: 1. Your family lawyer will approach your matter with all of his or her legal knowledge and skills to present you with viable strategies in your family law case. Lawyers are trained professionals and family lawyers, who specialize in family law and divorce law, are armed with knowledge in this area. This knowledge is absolutely essential when dealing with issues surrounding divorce (ex: custody, access, child support, spousal support, and equalization of net family property). Given this specialized knowledge, family lawyers are able to provide you with reasonable options in your case. 2. Your lawyer will approach your divorce case in a dispassionate manner. Divorce is a very emotional time for the people who are involved. Given this, it is important to have a lawyer represent you so that he or she may provide a reasoned, dispassionate perspective on your case. 3. A lawyer will assist you in navigating through complex paperwork, especially where court is involved. A divorce case often involves complicated materials. It can be overwhelming for you to attempt to navigate these documents. Your lawyer should...

In the Superior Court of Justice, in a family law case, the parties must attend a Mandatory Information Program if there are claims other than for a divorce and costs or the incorporation of terms of an agreement or prior court order (Family Law Rules, Rule 8.1(1)). The Mandatory Information Program is an in-person session, which may be led by a lawyer, a social worker, or some other facilitator. The Mandatory Information Program provides parties with information about separation and the legal process, and may include information on topics such as: The options available for resolving differences, including alternatives to going to court; The impact the separation of parents has on children; and, The resources available to deal with problems that arise from the separation (Family Law Rules, Rule 8.1(3)). The Applicant(s) and Respondent(s) each attend the Mandatory Information Program separately. The Applicant must arrange his or her own appointment to attend the Mandatory Information Program, obtain an appointment for the Respondent's attendance at the Mandatory Information Program, and serve the Respondent with notice of the Respondent's appointment with the Application (Family Law Rules, Rule 8.1(5)). Each party to a case must attend the Mandatory Information Program no later than 45 days after the case has been started (Family Law Rules, Rule 8.1(4)). If a...

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...

Many clients seeking to capture a pattern of behavior demonstrated by either their spouse or children, attempt to videotape the behavior with the expectation of presenting the videotaped recording in court. However, the admissibility of videotaped recordings is not straight-forward, and judges are usually reluctant to watch the recording and admit it into evidence. In the case of Scarlett v. Farrell, a father who had been accused by his wife of sexually abusing the child, attempted to record his access meetings with the child on three occasions. The father wished to convey to the courts that the child was not frightened by interacting with her father, and that his wife had fabricated the allegations. The wife argued that the videotaped recordings of the supervised access meetings with the child were recorded surreptitiously and without her consent. She sought to disallow the evidence from being admitted. Justice Spence reviewed the case law on the issue, and after much deliberation ruled that in cases where the admissibility of videotaped recordings is at issue, the question the court must ask is whether it probative value outweighs its prejudicial effect. In this particular case, Justice Spence ruled that because the mother was present during...