Divorce Act Changes to Custody & Access
As of March 1st 2021, the Divorce Act was amended, and essentially confirmed philosophies that were already in existence in the legal world but were not yet legislated by the Government.
The terms “Custody” and “Access” have been abolished. Those expressions are believed to lead to conflict and have therefore been replaced by “Parenting Responsibilities” and “Parenting Time”.
In Section 16.3 of the Divorce Act, significant changes were made to Parenting Orders, confirming some of the factors to be taken into account by the Parents, Lawyers, Mediators, and Judges, in order to determine the best interest of the child(ren). They are now better defined.
When you consult Marc J. Coderre, we will review those factors with you in order to make sure that there is clarification and understanding in relation to parenting disputes.
To discuss things further, please contact us for a free 30-minute consultation.
Divorce Act and New Obligations of Parents & Lawyers
As of March 1st 2021, both the federal Divorce Act and the provincial Children’s Law Reform Act were amended. Changes were made in order to promote alternate dispute resolutions, with Court being, hopefully, a final resort.
Lawyers in Ontario have been promoting alternate dispute resolution routes to deal and resolve family issues for many years, understanding how awful and difficult separations are on the entire family. Under Section 7.7 of the Divorce Act, Lawyers now have an obligation to advise of clients of the alternate dispute resolution routes.
Marc J. Coderre – family lawyer has believed in and embraced this philosophy for years. This philosophy has been in my Mission Statement, as set out in this Website, for over 20 years. I have always promoted this route, which has now been decreed by the Government of Canada. The Government of Canada has finally made it mandatory to consider alternate avenues to court, a practice that already existed in the family law “legal world” but was not yet a mandatory obligation for lawyers to direct their clients’ attention to this. My philosophy, in family law, is now finally aligned with Government requirements.
Under Section 7.3 of the Divorce Act, it is now a mandatory obligation for the parents and parties to attempt to resolve matters through dispute resolutions to the extent that it is appropriate to do so. Court Applications will and should still be issued; the clients, with their lawyers, need to review Sections 7.2 and 7.3 of the Divorce Act in order to determine whether or not Mediation is appropriate. There are some situations, such as high conflict situations and situations of violence, where a Court Application may be the only avenue.
Furthermore, Applications can also be issued, while agreeing to the Mediation process in order to avoid delays.
Marc J. Coderre – family lawyer will review the options with you and properly advise the client on the best route to be followed.
For a number of years now, lawyers and the legal system have seen an increase in the improper use of social media. The frequency of harassment online is appalling. The attacker’s intent goes beyond “character assassination”. The intent of posting defamatory material and disparaging remarks online, repetitively, is to harass. The intention of that behaviour is to inflict mental suffering, to cause fear, stress, and upset. Recording your thoughts on the internet should be discouraged as it is a violation of someone’s legal rights, as well as has an effect on mental health. In fact, as recognized by Judge Corbett in the Caplan v. Atas, 2021 case, it is actually now a tort. In other words, it is an offence to do so. Courts can deal with such behaviour.
Consult Marc J. Coderre – family lawyer for family law issues.
Pensions – valuation issues – Marc J. Coderre
When spouses separate, their property needs to be equalized under the mechanism set out in the Family Law Act. All family lawyers are familiar with this.
Pensions are viewed as property. Therefore, they need to be valued. For individuals employed by the Federal Government, they need to understand that there is a difference between the value that can be provided by the Federal Government under the Pension Benefit Division Act and the formula dictated under the Family Law Act to value pensions. Very simply, the methodology is different and the pension values will be different. A Federal Government employee needs to have his/her pension valued by a qualified actuary.
The Federal Government, under the Pension Benefits Division Act, will produce a value which is referred to as the maximum transferable amount. This represents 50% of the pension that could be transferred to the non-member spouse. That value is calculated by the government as of the date of the report.
The value of a pension under the Family Law Act referred to as the Family Law Value is the value of a pension on a very specific date, the date of separation. That date is fixed and does not change.
Some of the reasons that can explain the differences in the values are, and not limited to, the mortality assumptions, the discount rate, various employment assumptions, retirement age etc.
In the end, the proper way to value a Federal Government, in Ontario, upon separation, is to have a qualified actuary provide a report using the prescribed formula under the Family Law Act.
For guidance on such matters, please feel free to contact me.
Court reopening – Marc J. Coderre
In Ottawa, the “family Law court” has reopened as of the month of July 2020, although in a very different and, presumably, temporary model.
Typically, there are 5 possible hearings in a family law case: the first court date, the case conference, a motion, a settlement conference and, ultimately, a trial.
The first court date is a very short hearing used to schedule the mandatory first step which is a case conference. The case conference is a step in the family case where the presiding Judge or Master will usually give guidance of the parties with respect to the next steps and ensure that the disclosure of relevant documents and information is being made. Typically, the judicial officers do not have “substantial powers” during such hearings. Those are currently being conducted by telephone conference.
A motion is a very important step where the court will make Temporary Orders such as temporary support before trial, exclusive possession of the home, the sale the home etc. This step is, as a rule, currently being conducted by way of Zoom conferences.
The settlement conference, better referred to as “a pretrial”, is the last step before a trial. This is a step where the presiding Judge (who will not be the trial Judge) will try to narrow the issues and try to assist and/or help the parties and the lawyers settle the case. There is much preparation for this step and lawyers and/or self-represented parties need to file concise briefs and various financial statements and offers to settle. This step is, as a rule, currently being conducted by way of Zoom conferences.
As of September 10, 2020, we have not received directions from the Courts as to how trials will be conducted. It is my understanding that trials will be scheduled commencing November 2020, and it is not known whether or not those will be virtual trials or “in person trials”.
For guidance on such matters, please feel free to contact me.
Divorce Act – changes as for July 1, 2020
The Federal Government will be making changes to the Divorce Act as of July 1, 2020.
The Divorce Act applies to “married couples” who are separating. The Divorce Act does not apply to “common-law couples”.
The amendments are to come into effect on July 1, 2020. There will be several changes as a result of those amendments, however, the significant changes, in my view, will be the following:
- Parenting responsibilities v. custody
With respect to custody, the outdated notion of “custody” and “access” will now be removed from our common everyday vocabulary. Lawyers and Judges have, for many years now, tried to refrain from using such words preferring to talk about “parental responsibilities”.
Therefore, as of July 1, 2020, the terms “custody” and “access” will be removed from the Divorce Act. We will now talk about “parenting time” and “parenting responsibilities”.
With respect to “parental responsibilities”, the parents and their lawyers will now be negotiating agreements which will define the responsibilities of parents with respect to the health, education and activities (and other questions) regarding their children. Those responsibilities can be shared by the parents or exercised by one parent alone.
The second significant change to the Divorce Act concerns the rights of grandparents (and other family members) with respect to children. It is well known that separations have, at times, affected the rights of grandparents to see their grandchildren. The amendments to the Divorce Act will allow for a “non-parent”, such as a grandparent, to apply to a Court for the right to spend some time with their grandchildren.
More information will be provided as we receive the final revised Divorce Act.
Matrimonial Home – possession (who stays in)
Possession of the Matrimonial Home
In Ontario, there is a misunderstanding, in general, with respect to
the rights of married spouses to occupy the matrimonial home.
The single most important rule is the following:
the fact that the matrimonial home may be owned by one party alone, both
spouses have an equal right to possession.
- In other
words, neither party can “oust (eject)” the other party without the consent of
the other party or a Court Order.
As a rule, the Family
Law Act gives both spouses an equal right to possession of the matrimonial home,
regardless of ownership.
Of course, when parties separate, there is usually a
major issue with respect to “which spouse can remain in the home” and under
what circumstances can a party be ordered to “leave the home”.
The courts, more and more, have found that both spouses
have a right to remain in the home until the issues arising from the separation
have been resolved on a final basis. The courts understand that to “expel one
party” may have a significant impact on the custody issues.
However, the Family Law Act does have a provision that allows a Judge
(Court) to provide one spouse with exclusive possession of the matrimonial home
prior to Trial or after Trial. The legal test to be met to obtain such an Order
is complex and depends on many factors.
To discuss such an issue, or any other family Law issue, contact Marc
J Coderre (family lawyer Orleans/Ottawa).
Marc J Coderre – Orleans, Ontario Family Lawyer
Default Family Orders (Undefended Orders)
aside a default Order
There can be
circumstances where a party to a proceeding does not defend the action, is
unaware of the action, or for some other reason does not participate in the
litigation. The Family Law Rules provide that such a party can be noted in
default and that a Default Order can be made against that party.
The Family Law
Rules also provide that such an Order can, in certain limited circumstances, be
set aside (cancelled).
As a general
rule, the defaulting party needs to explain why he/she did not defend the action
or explain the noncooperation.
several factors to be considered by a Court before setting aside an Order. The
jurisdiction of the court to set aside a Final Order arises as a result of
combining Rule 1 of the Family Law Rules and rule 19.08 of the Rules of Civil
The Ontario Court of Appeal has held that, generally, there are three
(3) issues that must be determined by the court in exercising its discretion to
set aside a Default Order:
the motion to set aside the default judgment was made as soon as possible
following the moving party’s discovery of the judgment;
- Whether the moving party has established that there exists a sufficient explanation for the default; and
the moving party has set forth sufficient evidence to establish that there is
at the very least an arguable case to present on the merits.
In applying its discretion, the Court need not apply all 3
factors rigidly. For example, it is more important for the Court to find that
the Moving Party has an arguable case on its merits than to penalize that party
for not moving quickly enough to set aside the Default Order.
In any event,
if you are faced with such a situation, you should consult a family lawyer to
determine whether or not you have a case for setting aside a Default Order.
As a rule,
such a party should move as quickly as possible to address such an issue.
Contact Marc J
Coderre (family lawyer Orleans/Ottawa) to discuss any issue regarding family
J Coderre – Orleans (Ottawa), Ontario Family
In what province can I obtain a Divorce Order
As a general rule, a married spouse can commence a Divorce Application in any province in Canada provided either spouse has ordinarily been a in the province where the proceeding is commenced for at least one year immediately preceding the court application.
However, as with many issues in family law, a Court could transfer the proceeding into another province in certain circumstances. For example, if there are issues of custody, the proceedings will usually be transferred to the province where the children have their primary residence.
Always best to consult a family lawyer for advice. You can call Marc J. Coderre – family lawyer.
However, and for example, if the parties have settled all of their issues pursuant to a valid Separation Agreement negotiated in the province of Québec and, thereafter, one of the spouses moved to Ontario, that spouse can commence a Divorce Application for a Divorce Order in Ontario provided he/she has resided there for one year.
You can contact Marc J. Coderre, family and divorce lawyer based in Orleans and Beacon Hill, for advice on jurisdiction.
What happens to my pension when I separate?
Marc J. Coderre is an Orleans based family law (divorce) lawyer.
In Ontario, a pension is an asset. In the end, the value of a pension is considered in the division/equalization of the net family properties.
The pension has a value and the Family Law Act has established a clear method to properly value pensions. The pension is usually valued by a qualified actuary to determine what is referred to as the “the Family Law Value”.
This is a complex issue in Family Law. There are various methods of dealing with the division of pensions. In many instances, the pension is divided, if the pension legislation allows for that specific pension, at source meaning that the non-titled spouse will receive some form of lump-sum to be paid into a qualified, locked in investment.
To properly deal with a pension, the party requires the services of a lawyer and an actuary.
You can contact Marc J. Coderre, family and divorce lawyer based in Orleans and Beacon Hill, for advice on pensions and other assets.