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Process serving moves online in Ontario?
A judge in Ontario recently allowed a woman to serve her child’s father with a paternity action over Facebook, and has said that it would be wise for more people in the province to use more creative methods like online process serving.
The woman could not find the father’s address in order to have him served traditionally, but was able to find him on Facebook. She sent him a message on Facebook with documents attached, to which he replied. According to the judge, this reply was enough evidence to consider him served effectively. Texting via Blackberry and e-mail are also acceptable options according to Ontario Superior Court Justice Cheryl Robertson in a paper she presented at the 1000 Islands Legal Conference this month.
“In a province where, for reasons of money and time, the judicial system is increasingly out of reach for money, e-service can be a useful and viable alternative,” she said. “It will be foreign for some, and some will be uncomfortable using these electronic servers, but with time their advantages will likely win over even the greatest of skeptics.”
In most cases, people draft an application to start a family law proceeding (usually with the help of a family lawyer), after which it must be served to upon the opposing party. Many times the person being served is not on good terms with the applicant, so a process server is hired. When people suspect there is an attempt to serve them, for example to obtain child support or spousal support payments, they become anxious and may avoid being served. Using online methods may allow these issues to work through the courts faster without unnecessary delays from litigants avoiding being served.
Filed in Child Custody in Ontario, Child Support, Child Visitation, Process server, Service of documents, child custody •
Parliament is back in session: What does this mean for family law?
Canadian Members of Parliament returned to the House of Commons this last week Monday as Parliament resumes for the fall.
CBC News held a poll on their website asking Canadians what the most important issues to them were from a selection of pre-determined categories like the federal long-gun registry, healthcare, Afghan detainee transfers and the mandatory long-form census. Surprisingly, family law reform was not on the list but many of the 2500 Canadians who responded wrote it in themselves saying it should be a top priority.
Family law reform has yet to be touched upon as Parliament has focused on taxes, prisons, the census and the purchasing of $16 billion worth of fighter jets since returning.
Canadian family law reform as a whole is a slow process because it’s unfortunately not a top priority. For example, Bill C-422 is among the top 100 private member’s bills currently after undergoing its first reading over a year ago. This bill deals with mandating equal shared parenting unless it’s not in the best interests of the child, to promote the fact that children benefit from relationships with both their parents and to eliminate parental alienation, amending the Canadian Divorce Act in a very positive way. However, a bill in this position with little attention and support will likely not be debated until next fall. Members of the public can contact their MPs and let them know that this issue is important to them to garner extra support.
A recent review by Ontario’s Law Reform Commission that interviewed social workers, family lawyers, judges and mediators suggested family law reform should definitely be a top priority, and a recent comment by Ontario Chief Justice Warren Winkler also pointed out that creating a mandatory mediation process before family cases go to court would save families unnecessary financial hardship and emotional stress.
Filed in Child Custody in Ontario, Divorce, Family Law Changes Ontario, Mediation, child custody •
Toronto mediation vs. collaborative law
”How long?” and “how much?” are two questions that are often at the forefront of any divorce-oriented thought process, particularly when separating spouses attempt to resolve such issues as property division, child custody, and support. While the financial cost of finalizing a divorce depends on a great number of variables, the emotional costs during a hotly contested dispute can be great, taking its toll on both the parents and the children.
Mediation and collaborative law are two methods of finalizing a divorce without litigation. Mediation involves using a mediator, usually someone with a background in social work, to act as a negotiator between the opposing spouses in order to resolve the outstanding issues. The parties’ respective lawyers are involved in the mediation process and can opt to amend a mediator’s recommendations or the parties’ themselves can make changes to a recommendation.
In contrast, collaborative law involves the separating spouses and their respective lawyers, who are all active participants in the negotiation of the matrimonial issues. Should any of the issues related to the divorce fail to become finalized, the collaborative lawyers are prohibited from representing the spouses in court. Collaborative law is less expensive and time-consuming than litigation.
Filed in Child Custody in Ontario, Child Support, Collaborative Law, Divorce, Family Property Division, Separation Agreements, Spousal Support, Support Orders, child custody •
Ontario man running for family law changes
Dave Nash is running across Canada to increase awareness of the current issues within the family law system. Nash spent four years trying to resolve a custody dispute with his ex-wife in order to get shared custody of his son, and the people along his route that give him food, water or a place to stay have revealed similar experiences.
The Cross Canada Run for the Children will end in Cape Spear, Newfoundland, after beginning in Victoria, British Columbia – a distance of almost 7,300 kilometers to support the reform of Canadian family law and Bill C422.
Bill C422 is a private members bill that supports equal shared parenting in child custody disagreements, and the Bill had its first reading in parliament on June 16th, 2009. If passed, equal shared parenting between both parents would be the normal, or default situation assigned by the court in order to allow the children an equal relationship with both parents unless there is a safety concern. Also, the Bill would make it mandatory for parents to attend mediation prior to proceeding through the court system as a last resort to protect children from lengthy custody battles.
If Nash, from Guelph, completes his run before September 1st, he will have broken the World Record for the Fastest Crossing of Canada on Foot. He chose to break the Guinness World Record of 72 days to cross Canada on foot, because a non-custodial parent will typically spend on average 72 days per year with their child or children.
Filed in Child Custody in Ontario, Child Visitation, Divorce, Family Law Changes Ontario, Mediation •
More Ontario residents choosing out-of-court methods to resolve family law issues
According to a number of Ontario lawyers and professional mediators, an increasing number Ontario residents are taking their family law cases to alternative dispute resolution, including mediation and collaborative law. Alternative dispute resolution is a cost-effective alternative to the cost of litigating a family law matter in court, which is no longer within means for most people.
Alternative dispute resolution also provides a quicker resolution to a family law matter than litigation and provides parties with an opportunity to be heard and the ability to control negotiations. Parties are able to come to agreements, as opposed to having a resolution forced upon at least one party by a judge.
In mediation, a third party with special training, such as a background in social work, will assist both parties in making decisions. Lawyers are usually retained by the parties for advice in these cases, while in arbitration an arbitrator will meet with the parties’ respective lawyers. In collaborative law, parties’ lawyers will work to finalize an agreement that is acceptable for both parties, although if issues cannot be resolved the lawyers cannot be retained for any future court proceedings.
In 1999, the Ontario Mandatory Mediation Program was introduced in Toronto, Ottawa and Windsor. Mediation is an option that must now be considered in civil disputes at those locations. Mandatory mediation was not extended to family law cases because in some instances, such as domestic violence cases, mediation may not be a possibility.
In addition to its cost-effectiveness, alternative dispute resolution also removes children of separated parents from any exposure to the court process, and it enables adults, who were once children of their parents’ long, drawn out divorces, to go through their own family law dispute without lengthy litigation.
Filed in Child Custody in Ontario, Child Support, Child Visitation, Collaborative Law, Common Law Marriage, Divorce, Divorce Lawyer, Family Property Division, Mediation, Separation Agreements, Spousal Support, Support Orders, Toronto Divorce Lawyers, Toronto Family Lawyers •
MP plans on private member’s motion to review Canada’s Divorce Act
A Saskatchewan Conservative MP, Maurice Vellacott, has put forward a private member’s bill, Bill C-422, that would amend the federal Divorce Act to mandate shared custody of the children when parents divorce, unless a parent can show that it is not in the child’s best interest to do so. This piece of legislation was first brought before Parliament over a year ago but is still in its first reading.
Recently, a Western Arctic MP, Dennis Bevington, has announced that he has agreed to put forward a private member’s motion to have the federal Divorce Act reviewed in the House of Commons. The motion was put forward, in part, after Bevington was approached by a Yellowknife resident, Mark Bogan, who, on behalf of the Canadian Equal Parenting Council, is seeking to have shared custody of children become the presumed arrangement when parents divorce.
According to Bogan, Canada’s Divorce Act is outdated and there should be legislation focused on keeping divorce cases out of court while encouraging shared parenting, where both parents have equal custody. “It’s better for the parents to mediate and come up with an amicable solution,” Bogan recently quoted in Northern News Services. “If they’re unable to do that, court would mandate they would have an amicable, loving relationship with children. ‘Keep kids out of court’ is really our message, keep these families healthy.” Because of the Divorce Act, Bogan said he was not allowed access to two of his children for the better part of their lives, one of whom is now 19 years old.
Bevington said it was not only the Canadian Equal Parenting Council’s ideals but the “litigious nature” of the Divorce Act that pushed him to action. A private member’s motion is not the same as a private member’s bill, because it does not have the same policy recommendations as a private member’s bill. However, it can let the government know that important changes do need to be made.
Filed in Child Custody in Ontario, Divorce • Tags: Bill C-422, Canadian Equal Parenting Council's, Dennis Bevington, Mark Bogan, Maurice Vellacott, Northern News Services
Facebook Privacy Issues and Ontario Family Courts
The social networking website called Facebook is a tool to exchange information that has now made its way into the courtroom and is being used as evidence in litigation, particularly in family law disputes. In the United States, Facebook messages are commonly used in family law cases, as well as in civil and criminal cases and jury selection; while in Canada, the use of Facebook as documentary evidence is steadily on the rise.
Facebook has recently simplified its privacy settings and a user can now set his or her Facebook settings to enable only persons the user has manually added to their “friends list” with the ability to access and view the user’s on-line profile.
Another important feature within Facebook’s account privacy settings is the user’s ability to limit the information “friends” can view on the user’s profile. For instance, a user can prevent an ex-spouse or soon to be ex-spouse from viewing photos, relationship status, or wall postings.
Facebook users should be aware of a specific privacy setting that is available for ‘Applications’. Even though some users do not have the game FarmVille, or similar Facebook games uploaded to their profile, when a user’s “friend” has installed the game on their profile that game now has the capability of pulling personal Facebook information and photos from any listed “friends” of that individual. An adjustment to the privacy settings to prevent any sharing of information with an Application is recommended.
Due to the increase in the use of Facebook as documentary evidence in several recent Ontario family law court cases, Facebook users with pending court matters should not post information pertaining to the case and should also consider adjusting their privacy settings to avoid the possibility of having personal information used against them in court.
Filed in Child Custody in Ontario, Child Support, Child Visitation, Divorce, Spousal Support, Support Orders •
Judges Interviewing Children during Ontario Family Court Divorce Cases
Television, movies and other various forms of media often inaccurately depict court room procedures of cases dealing with divorce and child custody. In many instances, the media will have a child on the stand as a witness being questioned by a lawyer. In reality, children are rarely in court and instead their parents provide to the court the child’s wishes.
A recently published article in the Lawyers Weekly Magazine highlighted the infrequency in which Ontario judges meet with or interview children involved in custody disputes. In the article, a 2009 survey that interviewed judges in both Ohio and Ontario found that less than half of the judges in Ontario had ever interviewed a child.
Ohio was chosen in the comparative study because it is common practice for judges in that state to meet with and interview children as it is considered a useful tool in handling family law cases. In contrast, in Ontario interviews of children in family law cases is rarely elected to be performed by the judiciary due to the fact that judges do not have the training needed to effectively interview children in such important matters. Instead, children are often interviewed and/or assessed by either a psychiatrist, or other licenced professional, or a children’s lawyer. Alternatively, in Quebec, the process of judges meeting with children privately – without their parents present – is becoming more and more common.
When a child in a divorce case does end up in a courtroom setting, the judicial interview can make an already stressful situation even more so. However, the article suggests that Ontario judges should meet with the child to speak with him or her directly – while not recommended as the only way of getting a better understanding of the child and their situation – to allow the judge to gain better insight into the child’s views and preferences, as well as providing the child with a forum for their point of view to be been heard on decisions that impact their lives. This process also allows the child to learn more about the judicial process and how decisions are made.
Judicial interviews may prove to be beneficial for children of divorces, particularly where parental alienation has been alleged. Judicial interviews can assist in the determination as to whether alienation has occurred and/or whether the child has legitimate reasons for not wanting to see a parent.
LINK:
http://www.lawyersweekly.ca/index.php?section=article&volume=30&number=9&article=2
How a Family Lawyer can help you during Custody Disagreements
Nearly 38 per cent of Canadian marriages end in divorce, many of which involve children. Some soon-to-be divorced parents feel that child custody is something simple, and that if it were to play out in court the judge will see things fairly and dole out child custody arrangements as they should.
However, that’s not always the case and a good family lawyer can assist in child custody arrangements because they know the ins and outs of Ontario family law. A family lawyer can also help you avoid the court process 
altogether through alternative dispute resolution.
There are several different types of child custody, and family law courts don’t always assign just one or the other when it comes to joint or sole custody.
Access
Access is also called visitation, and this access may be supervised or unsupervised. Access is what the non-custodial parent gets when the other parent receives custody, and if the court is concerned about the abilities of the parent with visitation, this access will be supervised. This supervision is often provided by some kind of social worker at a neutral location, but can take place in the non-custodial parent’s home too.
Legal custody
Legal custody is the right to make decisions on the needs of the child, whether it be related to education, health care or religion.
Sole custody
Only one parent has complete custody of the children.
Split custody
In a case of multiple children, one parent has custody of some of the children and the other parent has custody over the rest of the children.
Joint custody
Both parents have custody and are generally amicable in their decisions regarding the welfare of the children.
Physical custody
A child lives with one parent and the other typically has visitation. Joint physical custody is also an option.
Shared custody
Both parents have custody of the children, and each parent must spend at least 40 per cent of the time with the children.
Filed in Child Custody in Ontario •
Adoption, Spousal and Child Support: What Family Law Rights do Unwed Fathers have?
Unmarried Father’s Rights to Children: Family Law Perspective
The legal obligations of fathers who aren’t married to their child’s mother are typically the same as if they were married, with only a few minor differences.
Adoption
Unlike pregnancies that result from a marriage, in these situations the child may be put up for adoption. If the man is aware of the child’s existence, he may have a decent chance of gaining custody of the child if the mother intends to give it up for adoption.
There are no current laws that force women to tell the father about a pregnancy.
Spousal Support
Spousal support for unmarried people doesn’t normally apply. However, it may if the couple falls under the definition of “spouses” as per the Family Law Act. For example, if a couple has lived together for three years or has lived in such a manner that it would appear to be marriage-like to a judge, there can be spousal support involved.
Child Support
The amount of child support paid by a father is not dependent on whether or not the couple is married. Whether or not the child was expected is also not factored into this decision, although an unmarried father may also be forced to pay for some of any prenatal expenses, according to the Family Law Act in Ontario.
Roe v. Wade for men
While in the United States and Canada women have the choice as to whether they want to go through with a pregnancy or not, men do not have such a choice. In 2006, a man in Michigan was ordered to pay almost $500 per month in child support to his ex-girlfriend, even though she was well aware he did not want to have a child and she had told him many times that she was physically unable to get pregnant. Some may argue that if the woman did not want to abort the child and refused to put it up for adoption she should have been able to pay for the child herself. The case was dubbed “Roe v. Wade for Men” and attempted to prove this very notion with a lawsuit, but the lawsuit was eventually dismissed.
Filed in Child Adoption, Child Custody in Ontario, Child Support, Spousal Support, Support Orders • Tags: adoption, father's rights, father's spousal support