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.

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By heather - Last updated: Monday, October 25, 2010
Filed in Child Custody in Ontario, Child Support, Child Visitation, Process server, Service of documents, child custody •


Family law needs to play catch-up with modern life

British Columbia’s proposed family law reforms are centered on the non-nuclear family and related issues of separation and child born with the use of surrogacy and sperm donors.  Many legal issues are on the rise as the use of surrogacy increases in various family situations.

In a recent case highlighted in the Globe and Mail, a couple who had paid a surrogate to carry their child had found out that embryonic genetic testing had revealed the child was likely to have down syndrome, leading to their request for the surrogate to abort the pregnancy. The couple had a thorough legal agreement with the surrogate, and if the surrogate refused to terminate the pregnancy then she would be responsible for raising the child.

However, a University of Calgary professor told the Globe and Mail that Canadian courts would not be likely to honour the agreement, as the court would lean towards the child’s biological parents to raise the child as being better for the child than an unrelated stranger. In this case, the surrogate ended up having an abortion for family reasons.

The case raises the question of whether the child is being treated like a product, and if the parents can effectively “return” that product if they do not want it anymore. In parts of the United States, parents who use a surrogate can sue to get their money back if the surrogate continues with the pregnancy even if they no longer want to. In other cases, couples have gotten divorced before the baby was born and the surrogate ended up as the custodial parent.

Surrogacy is on the rise in Canada and the provincial, or perhaps federal, government will have to enact legislation to govern this issue to protect the rights of those involved in this modern-day family.

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By heather - Last updated: Monday, October 11, 2010
Filed in Artificial insemination, Family Law Changes Ontario, Provincial legislation, Surrogacy, 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.

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By heather - Last updated: Sunday, September 26, 2010
Filed in Child Custody in Ontario, Divorce, Family Law Changes Ontario, Mediation, child custody •


More of British Columbia’s progressive family law changes revealed

The family law problems posed by modern life will soon have more clear-cut resolutions as British Columbia plans on tabling the new Family Law Act (the changes’ working title) during the first half of next year.

The 30-year-old Family Relations Act in British Columbia, which is the province’s version of the Ontario Family Law Act, is set to be completely overhauled with new rights for common-law couples and new custody rules to for today’s non-nuclear families.

Separating couples’ time with their children won’t be called access or custody anymore, but “parenting time” or “guardianship”. Families who are constantly in volatile disputes where children are involved will have parenting coordinators that will have the authority to act as an arbitrator, and children conceived by an egg or sperm after the donor parent dies will be seen in the eyes of the law equal to any other child by that particular pairing.

In addition, ex-spouses who act inappropriately can be given conduct orders that result in jail time and fines.

British Columbia’s government consulted with family lawyers, the Canadian Bar Association, as well as the public, in order to come up with the 172-page white paper.

Currently, Ontario does not have similar laws granting common-law couples property rights or custody laws that compare with those that British Columbia is proposing.

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By heather - Last updated: Sunday, September 12, 2010
Filed in Child Visitation, Common Law Marriage, Divorce, Family Property Division, 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.

 

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By heather - Last updated: Sunday, August 29, 2010
Filed in Child Custody in Ontario, Child Support, Collaborative Law, Divorce, Family Property Division, Separation Agreements, Spousal Support, Support Orders, child custody •


Green Party vote down motion to decriminalize polygamy

Recently, members of Canada’s Green Party attended a polygamy workshop and brought a motion to decriminalize polygamy that was voted down.

Polygamy is a marriage between multiple consenting adult spouses. Polygamy is not be confused with the various polygamist sects or religious cults such as the one in Bountiful, B.C., where there were accusations of domestic abuse, forced marriage and children being married to adults. This distinction was made very clear at the workshop, according to the Toronto Sun.

According to poly-advocate and Edmonton East Green Party candidate Trey Capnerhurst, issues like those seen in British Columbia should be met with criminal charges, but, “we should not be charging people with polygamy,” she said. According to Canadian criminal law, polygamy can result in up to five years in jail but polygamy itself has not been prosecuted for six decades. 

Many Green Party members have stated that polygamy is a human-rights issue, similar to same-sex marriage. A history of polygamy or a polygamist relationship is still on occasion used to deny custody of children in divorce cases.

While geared more towards surrogate parents and sperm donors, British Columbia’s new family law changes that would allow children to have more than two legal parents may leave room for polygamist relationships and increase the rights of polygamist parents, some of which are not biologically related to the child but have strong parent-child bonds and raise the children along with the biological parents.

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By heather - Last updated: Sunday, August 29, 2010
Filed in Divorce, Polygamy, Same Sex Marriage, child custody •