Family Law Update
By: Kathleen Bingham
For me, September represents the start of the New Year. I don’t know if this is because I want to go back to school (wouldn’t a few days in kindergarten be delightful?) or because everyone else in my house starts a new school year in September. Either way, it is the start of something new.
Once again, this September, there is a lot of uncertainty and I know many of us have our fingers crossed that kids stay in school for most (ideally all) of the year. There is also uncertainty about where the Courts will go to next and when/if we will return to in person meetings, appearances and events (discussions are happening, stay tuned).
To bring you up to date after the summer, the following is a collection of updates, thoughts and comments.
Changes to the Family Law Rules
August 1, 2021 brought further changes to the Family Law Rules which enhance the focus on dispute resolution processes. In the legislative changes that came into effect in March, there was a positive obligation on parties to try and resolve the matters through an alternative dispute resolution process (to the extent that it is appropriate to do so). Effective August 1, 2021 in the Family Law Rules, if partners have tried a dispute resolution process, they can request to move directly to a combined case conference/settlement conference. This is available to them provided the dispute resolution process included screening for power imbalances and domestic violence, shared their financial statements, have filed a completed Form 17G: Certificate of Dispute Resolution and have no outstanding motions. Given the current dates that are available for a conference (now 2022), this can be a very effective tool to use to secure a combined conference so that the matter can proceed to a hearing (should it be required) more expeditiously.
(The September 2, 2021 Province-wide Notice to the Profession Regarding Family Law Cases further expanded the availability of the combined conferences by including other forms of dispute resolution, including collaborative family law.) Effective September 1, 2021, the Rules changed the requirement of when a Financial Statement must be updated. Pursuant to the amended Rules, Financial Statements must be updated:
If there is a significant change to the person’s income;
If the last financial statement provided by the party would be:
More than 60 days old by the time a case or settlement conference is held;
More than 30 days old at the time a motion is heard;
More than 40 days old by the earlier of the start of the trial and/or the trial sittings.
Additionally, if the information in the financial statement has not changed (and there is no other requirement to update) an affidavit must be filed confirming that the information in the last statement has not changed and is still true.
There are also additional provisions if you receive a financial statement or financial disclosure from another party that you believe is insufficient. You can make a request in writing for the necessary additional information and if the additional information is not given within 7 days, the court may order the other party to give the information or serve and file a new financial statement.
Finally, Form 14C: Confirmations can no longer be filed by fax and court clerks can give electronic certified copies of documents that are in a court file!
Changes to the Children’s Law Reform Act
There is an additional change to the CLRA that increases the amount of funds which can be paid to a parent or caregiver of a child without a requirement to have a court order appointing that person as the child’s guardian of property. Specifically, the previous maximum amount of $10,000 has been increased to $35,000.
Upcoming changes to the Succession Law Reform Act
Mark your calendars! On January 1, 2022 there will be changes made to the SLRA which will remove the provision that provides that a will is revoked by the marriage of the testator.
Additionally, there will be a further addition to the act which will provide that if spouses are separated at the time of the testator’s death, the will shall be construed as if the former spouse had predeceased the testator. A spouse will be considered separated from the testator at the time of death, and they were living separate and apart as a result of the breakdown of their marriage or before the testator’s death,
They lived separate and apart as a result of the breakdown of their marriage for a period of three years, if the period immediately preceded the death,
They entered into an agreement that is a valid separation agreement under Part IV of the Family Law Act,
A court made an order with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage,
A family arbitration award was made with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage.
Province-wide Notice to the Profession Regarding Family Law Cases
The new province-wide practice direction is effective September 13, 2021. Note that although this Notice applies province-wide, there are also still regional practice directions that remain effective. Additionally (unless this changes between now and publication time) the Notice applies to family law cases and not child protection cases.
Here is a quick summary of the key points:
There are strict page limits that must be followed for each type of appearance.
Case Conferences – 8 pages + permissible attachments
Settlement Conferences – 12 pages + permissible attachments
Trial scheduling endorsement forms (bonus points if they are joint!) – no Trial Management Conference Briefs
Motions (not including long motions, motions for summary judgment or motions with respect to the wrongful removal of a child) – 12 pages of narrative (1 affidavit only). Third party, financial statement affidavits (see above) and reply Affidavits, where required, not more than 5 pages.
You can remove the parts of the form that are not applicable to your situation (helpful to keep within the page limits).
Permissible attachments are specified and only include the relevant excerpts.
Include in the material previous orders/endorsements that are relevant to the issues that are to be addressed, support calculations and terms of recognizance/police/CAS reports, where applicable.
Only attach the relevant and necessary excerpts from communications (if any are attached) .
Include additional documents required by the Rules (ie: financial statements, NFP Statements, expert reports, Offers to Settle).
Without exception – all documents must be double spaced and in 12 point font.
If you want to file something longer, you need leave.
Caselines – use it to facilitate the Court’s access to the entire court file. Upload documents from the Continuing Record.
Expected to be provided to the other party in advance of the case conference.
If that cannot be done, the party seeking disclosure must include in their materials a list of the outstanding disclosure.
Costs may be awarded.
If motions are required to deal with the disclosure, they must be heard in advance of the settlement conference.
Each party shall confer with every other party in advance of a conference with respect to any outstanding requests for disclosure, procedural matters to be addressed, and resolution of the outstanding issues. (The only exception is if there is a condition prohibiting communication or concerns about family violence if a party is not represented).
Before a confirmation is submitted, speak to the other party about these things.
Early Judicial Intervention and Procedural Direction – TBD in Hamilton.
Adjournments – no change for us in Hamilton. Don’t ask for one!
Case Law – food for thought
In Duboff v. Simpson, 2021 ONSC 4970, two new lawyers litigated the ownership of their Boxer breed dog. The Court determined the ownership of the dog and dismissed a claim for a constructive trust in the ownership of the dog. In considering the legal issues surrounding the dog, the Court held “[a dog] straddles a difficult place between [property and a child]. As property, the court could order that the dog is sold and the parties share the proceeds… or it could impose some kind of shared schedule…. However, courts are not equipped to supervise the sharing of a pet. Orders requiring some kind of shared schedule would encourage cases like this in the context of limited court resources.”1 It is interesting that the Court set out an option to impose a shared schedule for the pet, although it declined to grant one and expressed concern about the potential for increased litigation.
Probably common sense, but in Dreesen v. Dreesen 2021 ONCA 557 the Ontario Court of Appeal confirmed that a change in employment does not necessarily give rise to a material change in circumstances, particularly where the change in employment does not result in a change in income. Additionally, the decision of the Supreme Court of Canada in Colucci must be considered if there is a request by a payor to retroactively decrease child support (for a refresher, read Michaela Newman’s article in the HLA Journal, Volume 31, Issue 4 page 10).
The recent decision of Justice Audet in Volgemut v. Decristoforo 2021 ONSC 47502, provide innovative ways to approach temporary orders where there is a concern with respect to compliance. The Father was seeking in person parenting time with his 2 year old daughter in Turkey. The Mother opposed the motion and sought supervised parenting time in Canada. The motion arose in the context of a trial where the mother had removed the child from the United Arab Emirates without the Father’s consent and brought the child to Canada. The Father had significant wealth and the Mother argued that he would remove the child during his time with her in Turkey. The Court held that it was in the child’s best interest to have in person parenting time with her Father in Turkey, but imposed a number of very strict terms in the Order. These terms included:
That the Father shall, prior to the child’s departure to Turkey,
File with the Court an originally signed consent and approved draft final order prescribed by the laws of the United Arab Emirates granting the mother sole decision-making authority, sole custody and primary residence of the child, confirming that the child’s habitual residence is Canada and allowing the guardian to remove the child from the United Arab Emirates and return to Canada with the child at any time; and
Pay $200,000 as security for the child’s safe return to Canada.
If the Father fails to return the child, the Mother can bring an urgent motion seeking;
That the Father’s security for costs (previously of $150,000 plus the new $200,000) be released to her;
A final order granting sole decision-making authority and primary residence of the child; and
That the signed consent (referenced above) be released to her.
The requirement to sign consents and provide approved draft final orders providing for the relief sought by the other parent is not common and perhaps only applicable in exceptional cases. However, the creative approach to crafting the temporary order is something that we can focus on in our own practice.
The current soundtrack in my life (courtesy of my daughters) is Vivo – music written by Lin-Manuel Miranda. The chorus to the song, Keep the Beat, seems particularly appropriate:
All I can do when the road bends,
Is lean into the curve
And all I can do when the tanks run dry
Is see what’s in reserve
And all I can do when the plans break down
Is stay on my feet
And all I can do at the end of the day
Is play on, play on and keep the beat.
It has been too long since we have been able to catch up and see each other in the lawyers’ lounge. Take care of yourselves, your loved ones, your colleagues and your community. Only four months until the real New Year!
Kathleen Bingham practices Family Law at Bingham Law.
She can be reached at:
25 Main Street West, Suite 601
Tel: (905) 297-4767
Email: [email protected]
1 Duboff v. Simpson, 2021 ONSC 4970 at paras. 43-44.
2 Leave to appeal the interim order dismissed (2021 ONSC 5448).
3 Keep the Beat, from the Motion Picture Vivo, by Lin-Manuel Miranda